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EXHIBIT 10.4
Terms Of Business Agreement
of
MeesPierson ICS Limited
with
Hull Trading Asia Ltd.
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TERMS OF BUSINESS AGREEMENT
1. INTRODUCTION
1.1. This terms of business (the 'Terms of Business') constitutes a
legally binding agreement that will apply to the business described
herein. This Terms of Business supersedes any other Terms of
Business or as relevant any other notices that may previously have
been sent to the Client by MeesPierson ICS Limited ('ICS').
1.2. No document, agreement or other arrangement referred to hereunder,
or otherwise, shall be deemed to be effective unless and until such
document, agreement or arrangement has been recorded in writing and
signed by an authorised signatory of ICS and of the Client.
1.3. ICS is regulated by the Securities and Futures Authority Limited
('SFA') in the conduct of investment business.
1.4. This Terms of Business sets out the basis on which ICS (whose
registered office and principal place of business is at Xxxxxxxx
Xxxxx, 00 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX) will provide to:
Hull Trading Asia Limited
...................................................................
whose principal place of business is
Xxxxx 00, Xxx Xxxxxxx Xxxxx
...................................................................
00 Xxxxxxxxx Xxxx Xxxx
...................................................................
(the 'Client') such services with respect to dealings in
investments as ICS may agree in writing with the Client from time
to time in, or with reference to, this Terms of Business. ICS may
also, to the extent ICS agrees in writing to do so, provide
additional services or facilities to the Client.
2. DEFINITIONS
2.1. The expressions in this Terms of Business shall have the following
meanings unless the context requires otherwise:
'associate': any undertaking controlled by ICS; any parent company
of ICS; any undertaking controlled by a parent company of ICS; or
any other person whose business or domestic relationship might
reasonably be expected to give rise to a community of interest;
'business day': a day other than a Saturday or a Sunday on which
commercial banks are open for this type of business in London or
any other financial centre deemed necessary by ICS;
'exchange': any recognised or designated investment exchange (as
defined by the rules of SFA) of which ICS is from time to time a
member;
'FSA': the Financial Services Xxx 0000 as amended from time to
time;
'LIFFE': the London International Financial Futures and Options
Exchange Limited;
'rules and regulations': the rules, regulations or by-laws of any
self regulating organisation or exchange which ICS is from time to
time regulated by or a member of;
'rules of SFA': shall have the meaning given in the SFA rule book;
'self regulating organisation': shall have the meaning ascribed
thereto in the FSA;
'SFA': the Securities and Futures Authority Limited;
'Terms of Business': this 'Terms of Business Agreement' and as
appropriate any other documentation entered into between the Client
and ICS in connection with the services to be provided pursuant to
this Terms of Business.
2.2. The headings in this Terms of Business are inserted for
convenience only and shall be ignored in construing the provisions
hereof. In the case that the Client is an individual all references
shall apply directly to that named individual and in the case that
the Client is a body corporate all references shall be to that body
corporate and to all directors, employees and agents of that body
corporate as may be appropriate.
3. CATEGORISATION
3.1. ICS is required by the rules of SFA to categorise its
counterparties. Confirmation of the Client's categorisation under
the rules of SFA will be provided to the Client by means of a
separate notice. Unless
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the Client gives ICS written notice that the Client's personal or
financial circumstances have changed, ICS shall deem that the
circumstances giving rise to such categorisation have not changed.
4. SERVICES TO BE PROVIDED
4.1. ICS shall, unless it has reasonable grounds for refusing to do so,
provide the Client with execution, clearing or other additional
services on or in relation to any relevant exchange in respect of
transactions in any of the investments as are set out in Appendix A
to this Terms of Business. For the avoidance of doubt, ICS shall
not be required to enter into or otherwise accept any transaction
from or on behalf of the Client unless and until such transaction
shall be included, in writing, within the Terms of Business.
4.2. In providing any service to the Client ICS shall, subject to all
relevant instructions, payments and other details having been duly
received from the Client, use all reasonable endeavours to:
a) procure the registration by any relevant clearing house of
contracts or transactions executed on any exchange on the
instructions of or to the order of the Client (whether by ICS or
otherwise);
b) where relevant, submit to any relevant clearing house or exchange
notices of exercise of options by the Client and relay to the
Client notices of assignment of options against the Client.
c) accept or make delivery of physical commodities, securities or
other assets underlying any investments and
d) provide to the Client such confirmations or statements relating
to the Client's accounts as are specified in this Terms of
Business.
4.3. Without prejudice to the general willingness of ICS to execute,
clear or provide other services to the Client, ICS shall not be
under any obligation to enter into any particular transaction, or
to accept or act in accordance with any instruction if ICS has
reasonable grounds for refusing to do so.
5. CAPACITY OF ICS
5.1. Unless otherwise agreed in writing by ICS, ICS in providing
services to the Client will act as principal and not as agent for
the Client (or any client of the Client). ICS has no fiduciary
obligations to the Client and, accordingly, the duties and
obligations of ICS to the Client are limited to those expressly set
out hereunder.
5.2. ICS will accept any instructions to execute transactions from the
Client on an execution-only basis and will not advise upon the
merits of a particular transaction or determine whether any
transaction is suitable for the Client. Accordingly, the Client
will make its own judgement and decision with respect to any
transactions and no representation or warranty is given by ICS as
to the value, merits or suitability of any investment purchased or
transaction undertaken by the Client.
6. BEST EXECUTION
6.1. ICS shall not owe any duty to the Client of 'best execution'
whether under the rules of SFA or otherwise.
7. TIME
7.1. It is acknowledged and agreed by ICS and the Client that time
shall be of the essence in relation to any payment or delivery or
other obligation required under this Terms of Business, including,
without limitation, the provision by the Client of any margin or
other amounts due in relation to transactions under this Terms of
Business.
8. AGGREGATION OF ORDERS
8.1. ICS may, where relevant, aggregate or combine orders for any
Client with orders for any other client or for ICS or for any
associate of ICS. Combining orders with those of other persons may
result in the Client obtaining, on other occasions, a more
favourable price and, on other occasions, a less favourable price,
than if the order had been executed separately.
9. INTERMEDIATE BROKERS
9.1. The Client agrees that ICS may use any intermediate brokers
(including non-United Kingdom intermediate brokers) in relation to
any transactions effected with or for the Client.
10. COLD CALLING
10.1. The Client authorises ICS to visit or telephone the Client to
discuss investments, or otherwise, without express invitation.
While this is designed to increase the effectiveness of ICS's
services, the Client may forego any statutory rights which might
otherwise have entitled him to treat transactions entered into as a
result of an uninvited call as unenforceable.
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11. CLIENT'S ACCOUNT
11.1. All assets, liabilities, rights or obligations arising from any
transaction effected by ICS or any associate with or for the Client
and all cash, investments, positions or other assets held by or
under the control of ICS or any associate shall be deemed debited
or credited (as the case may be) to one or more accounts in the
name of the Client.
12. DUE AUTHORISATION
12.1. The Client warrants, undertakes and represents to ICS that both at
the date hereof and at the time of any transaction entered into by
ICS for the account of the Client:
a) subject to this Terms of Business, and unless we agree in writing
otherwise, the Client's investments or other assets to which this
Terms of Business apply are and will be for so long as this
Terms of Business are in force beneficially owned by the Client
free from any charge, lien, pledge or encumbrance, unless the
Client has expressly notified in writing ICS that the Client is
acting as a trustee or agent in respect of any particular
investment or other asset. In such a case the Client will
warrant, undertake and represent this in respect of, and on
behalf of, the person or persons for whom the Client is trustee
or agent;
b) wherever the Client acts as trustee or agent for another, the
Client is authorised by the Client's principal with full power
and capacity to instruct us upon the terms of this Terms of
Business;
12.2. The Client will provide ICS, forthwith upon demand, evidence
reasonably satisfactory to ICS of the necessary approvals,
authorisations, authorities, consents and licences referred to in
Paragraph 12.1 above.
13. AGENT OR ATTORNEY
13.1. If the Client wishes a third party to act on behalf of the Client
at any time, the Client must inform ICS in writing in such form as
ICS may require of the name of such third party and acknowledge
that ICS will only deal with such third party on production by them
of a Power of Attorney given by the Client in their favour.
13.2. Any direction given by such duly appointed attorney is to be
understood as emanating from the Client and the Client will be
fully responsible for all consequences of ICS acting on such
direction.
14. CLIENT INFORMATION
14.1. The Client will, following a request by ICS, provide promptly to
ICS copies of its latest audited accounts (if applicable) and any
such other financial or other information as ICS may reasonably
request.
14.2. The Client will give immediate written notification to ICS:
a) of any material change in the personal or financial position,
constitution or control of the Client or of any other change
which may reasonably be thought to be relevant to the
relationship between ICS and the Client;
b) if any warranty, representation, undertaking or other information
provided by the Client to ICS shall become untrue or misleading
or incapable of performance in any material respect;
c) of the occurrence of any event or circumstance referred to in
Paragraph 27.1; and
d) of any other information which may reasonably be considered
material to ICS in deciding whether to provide, or continue to
provide, services to the Client or in determining the basis on
which such services should be provided.
15. INSTRUCTIONS
15.1. Instructions to ICS may be communicated either in writing, by
facsimile transmission, by telex or by other electronic means to
ICS at the address stated in Paragraph 1.4 (or such other address
as ICS shall from time to time notify in writing to the Client).
15.2. ICS will have no obligation to act upon any instruction unless and
until the instruction is actually received by ICS. Such instruction
must be received by ICS during normal London business hours and
allow ICS a reasonable time to carry the instruction into effect.
ICS may, in its absolute discretion, refuse to accept any order or
other instruction for the account of the Client.
15.3. The Client shall be bound by, and ICS may rely on and act in
accordance with, any instructions which ICS believes, in good
faith, to have been given by an authorised employee, agent, officer
or other representative of the Client. ICS may continue to rely
upon authorised signatures provided by the Client unless and until
it receives written notification of any change.
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15.4. ICS may, if specifically agreed with the Client, and subject to
the execution of such third party mandate, power of attorney or
further indemnity as ICS may reasonably require, accept
instructions for the account of the Client from any third party.
The Client shall be bound by and ICS may rely on and act in
accordance with any instructions which ICS believes, in good faith,
to have been given by a duly authorised third party. Instructions
from third parties must be given in writing but ICS accepts no
responsibility for any errors or omissions resulting from such
instructions.
15.5. ICS will not be responsible for any delays or inaccuracies in the
transmission of instructions or other information or in the
clearing, registration of or exercise of rights under, transactions
due to any cause beyond ICS's reasonable control. If ICS requests
instructions from the Client and the Client does not respond within
a reasonable time, ICS reserves the right to take such steps as it
considers appropriate in the circumstances, whether for its own
protection or otherwise.
15.6. The Client agrees that all telephone conversations with ICS may,
without further warning, be recorded and may be used as evidence in
the event of any dispute. Such recordings will be and remain the
sole property of ICS and will, in the absence of manifest error, be
accepted by the Client as evidence of the orders, instructions,
communications or conversations so recorded. The period of
retention of such recordings shall be at the sole discretion of
ICS.
16. REPORTING
16.1. ICS will, when required by the rules of SFA to do so, send a
confirmation note relating to any transaction to the Client (or a
person nominated in writing by the Client) prior to the
close of the next business day following the transaction. The terms
of any confirmation will, save in the case of manifest error, be
conclusive unless ICS is notified in writing by or on behalf of the
Client of any disagreement forthwith, and in any event, prior to
the close of the third business day after the deemed date of
receipt of such confirmation.
16.2. ICS will send to the Client (or a person nominated in writing by
the Client) statements of account in accordance with any applicable
requirements of the rules of SFA. The terms of any account
statement will, save in the case of manifest error, be conclusive
unless ICS is notified in writing by or on behalf of the Client of
any disagreement forthwith, and in any event, prior to the close of
the third business day after the deemed date of receipt of such
statement.
17. MARGIN
17.1. The Client agrees to pay or deliver to ICS on demand, in relation
to any transaction or proposed transaction, such sums or property
by way of deposit or margin as ICS may from time to time reasonably
require. In relation to exchange traded transactions, such deposit
or margin shall be of such amount or value as shall be not less
than that required under the rules of the relevant exchange but ICS
may, acting reasonably, require a greater amount of deposit or
margin.
17.2. ICS reserves the right to vary, by notice to the Client and at its
sole discretion, its margin requirements at any time.
17.3. Deposits or margin shall be provided to ICS in such manner and in
such form as ICS may reasonably request.
17.4. The Client is responsible for maintaining appropriate arrangements
with ICS at all times for tile communication of margin calls from
ICS.
17.5. If ICS is unable to contact the Client, having made reasonable
efforts to do so, or if the Client fails to comply with its
obligations to provide suitable deposit or margin to ICS within
such time as ICS may reasonably determine, ICS may take such steps
as it considers necessary or may exercise any of its rights
hereunder to protect its position including, without limitation,
its rights to close out or liquidate transactions or positions,
invoice back or otherwise settle early any transaction or to sell
or realise any collateral or other property held on behalf of the
Client or to terminate its relationship with the Client provided
that it shall at all times seek to act in such a way as it
reasonably believes will minimise any potential loss and maximise
any potential benefit to the Client.
18. COLLATERAL
18.1. The Client may provide assets, in such form as is from time to
time acceptable to ICS to be held by ICS as collateral against the
liabilities, from time to time being and actual or contingent, of
the Client.
18.2. Any asset which is not of a type acceptable to ISC as collateral
will not be accepted by ICS as collateral against the Client's
liabilities or obligations. For the avoidance of doubt, ICS neither
offers nor provides, on an agreed basis or otherwise, any safe
custody service as envisaged by the safekeeping rules of SFA and
will
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not accept, or continue to hold, as collateral against the Client's
liabilities or obligations any asset which ceases to be acceptable
to ICS as collateral.
18.3. Any assets provided by the Client as collateral to ICS will be
registered in the name of a nominee company or in the name of an
eligible custodian or any other person in accordance with the
Client's specific written instructions, in accordance with the
rules of SFA.
18.4. ICS will assume responsibility for claiming and receiving
dividends, interest payments and other rights accruing to the
Client.
18.5. ICS will act on the clear written instructions of the Client
regarding the exercise of conversion, subscription and voting
rights and in respect of takeovers, capital reorganisations and
other offers, always providing that sufficient notice is given by
the Client to enable such action to be taken. In the event that ICS
does not receive clear written instructions from the Client, ICS
reserves the right to act or refrain from acting in relation to
corporate actions in such manner as it may determine to be in the
best interests of the Client but will not be under any liability
whatsoever for any loss or damage sustained by the Client as a
result of any action or otherwise on the part of ICS.
18.6. ICS accepts no liability to the Client for the default of any
eligible custodian or nominee company, except that ICS does not
disclaim responsibility for any losses which may be proven as
arising directly from the fraud or willful default or negligence of
ICS or from the default of MeesPierson ICS Nominees Limited.
18.7. ICS shall have the right (subject to an obligation to account to
the Client for property of the same nature and description but not
necessarily identical to the property originally delivered to ICS
and subject to ICS's other rights hereunder) to pledge, charge,
loan or otherwise use or dispose of all or part of any deposit,
margin or other property provided by the Client (or on the Client's
behalf) to ICS under this Terms of Business as if ICS were the
beneficial owner thereof. This may result in securities delivered
to ICS by the client being registered other than in the name of the
Client.
18.8. ICS may return to the Client collateral other than the original
collateral or original type of collateral which has been deposited
with ICS. Nothing in this Paragraph shall prevent ICS, at its sole
discretion, returning to the client cash equivalent where the
original collateral has matured.
18.9. Any cash, securities or other assets delivered to ICS under this
Terms of Business may be deposited with or pledged or charged to
or otherwise placed as security with an intermediate broker,
clearing house or exchange upon such terms as ICS may in its sole
discretion agree with such person or persons in respect of its or
the Client's obligations and liabilities to that intermediate
broker, clearing house or exchange.
18.10. If securities are deposited with or pledged or charged to or
otherwise placed as security with an intermediate broker, clearing
house or exchange as aforesaid and if such securities are, in the
unlikely event of the default of ICS, subsequently realised the
proceeds of sale (to the extent that they exceed the amount owed by
the Client to ICS and to the extent that they are returned to ICS
and the Client Money Rules of SFA apply) be subject to the pooling
rules of the Client Money Rules of SFA. The effect of this is,
broadly, that such sale proceeds may be used to meet the claims of
other segregated clients in the event of an overall deficiency in
client money held for segregated clients of ICS.
19. SECURITY
19.1. All cash, investments or other assets of the Client which may at
any time be in the possession or control of ICS or carried in the
books of ICS for any purpose, including safe-keeping, shall be held
by ICS subject to a general lien and right of set off against any
liabilities of the Client to ICS whether or not ICS has made
advances to the Client in connection with such investments or other
assets and irrespective of the number of accounts which the Client
may have with ICS.
19.2. The Client, with full title guarantee and as continuing security
for all the Client's liabilities and obligation to ICS under this
Terms of Business or otherwise, hereby charges, by way of first,
fixed charge and grants a pledge over all securities, documents of
or entering title to property, cash or other assets of any nature
held by or subject to the control of ICS by way of deposit or
margin (or any nominee or custodian of ICS) for the account of the
Client (including, without limitation, the benefit of all
contractual rights and obligations and any proceeds of sale and any
securities or other assets which ICS has agreed to hold as
custodian) and grants a general lien and right of set-off as
security for the performance of the Client's obligations hereunder
and under any transaction or any other obligation of the Client to
ICS or any associate of ICS. To the extent that security shall be
held by ICS as security for obligation to an associate of ICS, ICS
shall hold the benefit of that security as trustee and agent for
that associate.
19.3. ICS shall have, to the greatest extent permitted by law, all of
the rights of a secured party with respect to any money or other
assets charged to ICS and the Client will, at the request of ICS,
take such action as ICS may
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reasonably require to perfect or enforce any security interest and
irrevocably appoint ICS as its attorney to take any such action on
its behalf.
19.4. The Client warrants to ICS that all deposits, margin, cash,
securities or other assets of any nature furnished or deposited
with ICS by or on behalf of the Client are the sole and beneficial
property of the Client or are furnished or deposited with ICS
pursuant to this clause with the legal and beneficial owner's
unconditional consent and free of such owner's interest and, in any
event, will be furnished to or deposited with ICS free and clear of
any lien, charge or other encumbrance and undertakes that the
Client will not charge, assign or otherwise dispose of or create
any interest therein.
20. FEES, COMMISSIONS AND OTHER EXPENSES
20.1. ICS's fees and charges for its services will be those specified in
Appendix B. Such fees or charges may be varied from time to time by
ICS by notice in writing to the Client. ICS may share such fees or
charges with associates or other third parties and will provide
details to the Client on request
20.2. In addition to the fees and charges referred to in clause 20.1,
the Client will, unless otherwise agreed, reimburse ICS on demand
with respect to any costs or expenses incurred by ICS in carrying
out its duties hereunder including, but not limited to, bank,
broking, exchange, custodian, clearing and transaction fees, stamp
duty (if any), value added tax and other applicable taxes and
charges.
20.3. ICS retains the right to pass on to the Client any legal or other
third party costs incurred in relation to any course of action
required by ICS in conjunction with the exercise of any of ICS's
rights hereunder, including, without limitation, the preparation
of any necessary documentation, costs of legal advice or action,
enforcement of any right or remedy, or otherwise as circumstances
may require.
20.4. ICS and any associate shall, unless otherwise agreed in writing
with the Client, be entitled to receive and retain any benefit,
including any commissions, rebates or reductions (whether from
standard rates of commission or otherwise) received in connection
with any service or transaction provided or entered into by ICS or
any associate hereunder.
21. WARRANTIES AND UNDERTAKINGS
21.1. The Client warrants to ICS that, both at the date hereof and at
the time of any transaction entered into by ICS for the account of
the Client:
a) if it is a body corporate, it is duly incorporated and validly
existing under the laws of the country of its incorporation;
b) it has and will at all times have the necessary power, authority
and consents required to enable it to enter into the Terms of
Business with ICS constituted by this Terms of Business and to
perform its obligations hereunder and such agreement constitutes
legal, valid and binding obligations of the Client enforceable
against it;
c) all necessary authorisations (including, without limitation, any
regulatory or governmental consents or approvals) to enable or
entitle the Client to enter into and perform its obligations
hereunder and to carry on its business have been obtained and are
in full force and effect and will remain in such force and effect
at all times during the term hereof;
d) all information supplied by the Client to ICS is true, complete
and accurate in all material respects; and
e) unless specifically agreed to the contrary with ICS, or as
otherwise required by the rules of any Exchange, the Client is
contracting with ICS and will enter into all transactions with
ICS as a principal and will give transactions to ICS to clear
only when the Client is dealing as principal and no other person
has or will have any interest in any contract or transaction
entered into for the account of the Client.
21.2. The Client irrevocably undertakes to ICS that:
a) it will provide ICS with all necessary delivery documents,
information and payments for settlement of transactions in
sufficient time (which may be specifically stipulated by ICS) to
enable ICS to confirm transactions, effect delivery, implement
instructions and pay and secure settlement or other monies in
accordance with the requirements of the relevant transaction,
exchange, clearing house or market;
b) it will duly make or accept delivery of any commodities,
securities or other assets underlying any contract or transaction
where required under the terms of such contract or transaction;
c) it will liquidate on demand any debit balance on any account of
the Client with ICS;
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d) it will notify ICS promptly, and in all cases within any such
period of time as ICS may from time to time require, of any
transaction entered into by the Client which is to be cleared by
ICS together with such additional details as ICS may reasonably
require; and
e) it will notify ICS forthwith, on becoming aware of the same, of
any inaccuracies, errors or omissions either in the Client's own
accounts or in any information, statement or report received from
or provided to ICS.
22. MATERIAL INTERESTS
22.1. ICS may without further reference to or consent from the Client
effect a transaction with or for the Client notwithstanding that
ICS or any associate of ICS has directly or indirectly a material
interest of any description in the transaction or has a
relationship of any description with any other person such as to
place ICS or any associate in a position where its duty or interest
in relation to that other person may conflict with its duty to the
Client.
22.2. ICS may, if it considers in good faith that such transaction is in
the interests of the Client, effect sales, purchases, or other
dealings with itself or any associate or other Clients of ICS or
any associate.
22.3. ICS may employ and pay any associate on reasonable and proper
terms to perform custodial, agency or related administrative
services, to make deposits or effect foreign exchange transactions
or to provide such other services to or for the account of the
Client as ICS may determine.
22.4. Any interests, relationships or arrangements arising under this
Clause 22 may not be separately disclosed to the Client at the time
of the transaction. ICS shall be entitled to exercise its rights
and powers under this Clause 22 without accounting to the Client
for any profit of ICS or any associate of ICS resulting therefrom.
23. PAYMENTS
23.1. All amounts including, without limitation, all margin, fees and
charges payable by the Client hereunder shall be due on demand, in
such currency as ICS may reasonably determine and shall be paid
without set-off, counterclaim or deduction.
23.2. All sums expressed to be payable to ICS hereunder are exclusive of
any VAT or other applicable taxes or duties (together 'Taxes'). All
Taxes shall be payable to ICS by the Client at the same time as the
sums to which any Taxes relate.
23.3. All amounts owed by the Client to ICS or any associate, including
any costs of collection, shall bear interest, both before and after
judgement, from the date when the amounts fall due for settlement
until final payment calculated on a day to day basis at such rate
as may be defined under the terms of any credit or other facility
and otherwise at a rate as set out in Appendix B in respect of the
amounts so due. Any such rates may be varied from time to time as
may be notified in writing to the Client by ICS.
23.4. ICS may agree to pay to the Client interest on amounts standing to
the credit of the Client's account with ICS at such rates as set
out in Appendix B. Any such rates may be varied from time to time
as may be notified in writing to the Client by ICS.
23.5. Until the Client has paid or discharged in full all monies and
liabilities owed to ICS or any associate any monies from time to
time outstanding to the credit of the Client's account with ICS
shall not be due and payable although ICS may, in its absolute
discretion, make payments to the Client from any such account or
otherwise exercise its rights of set-off or combination or
consolidation.
24. CLIENT MONEY
24.1. ICS will not treat any of the Client's money as client money as
defined by the rules of SFA. This means that the Client's money
will not be subject to the protections conferred by the Client
Money Rules of SFA and, as a consequence, the Client's money will
not be segregated from ICS's money and will be used by ICS in the
course of ICS's business. The Client will therefore rank as a
general creditor of ICS. Should the Client wish ICS to hold the
Client's money as client money, a request should be made in writing
and, if ICS agrees to do so, it will do so subject to such terms as
may be agreed between ICS and the Client.
25. COMBINATION AND CONSOLIDATION OF ACCOUNTS AND SET-OFF
25.1. Without prejudice and in addition to any other rights hereunder or
to which it may be entitled at law, ICS, for itself and as agent
for any associate to whom it has delegated any of its duties
hereunder may, at any time and without notice, notwithstanding any
settlement of account or any other matter whatsoever:
a) combine or consolidate all or any of the accounts of the Client
with ICS or any associate established in connection with this
Terms of Business, of any nature whatsoever and whether held
individually or jointly with others, with all or any liabilities
to ICS or any associate under or pursuant to this Terms of
Business; or
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b) set-off, transfer or apply any cash, investments, positions or
other assets held in or credited to any such accounts including,
without limitation, any margin or segregated funds or any
proceeds of sale or any indebtedness, liabilities or obligations
of ICS or any associate of ICS under or pursuant to this Terms
of Business, whether or not expressed in the same currency,
including, without limitation, any payment of margin or fees or
charges due to ICS or any associate of ICS or payments pursuant
to any indemnity under or pursuant to this Terms of Business.
For the avoidance of doubt, any reference in this Clause to any
indebtedness, obligations or liabilities shall include all
indebtedness, obligations or liabilities of any nature under or
pursuant to this Terms of Business, whether present or future,
actual or contingent, primary or collateral, several or joint,
secured or unsecured.
25.2. The Client agrees that any indebtedness, liability or obligation
owed to an associate of ICS under or pursuant to this Terms of
Business shall be enforceable by ICS on behalf of and as trustee
and agent for, such associate.
25.3. Where any set-off, consolidation, combination or transfer requires
the conversion of one currency to another, such conversion shall be
carried out at such rates and in such manner as ICS may reasonably
determine.
26. NETTING UNDER FOA MASTER NETTING AGREEMENT
26.1. ICS is a member of the Futures and Options Association ('FOA') and
is a participant in the FOA initiative to provide greater legal
certainty and security to netting arrangements between
counterparties.
26.2. If the Client is domiciled or otherwise subject to the laws and
regulations of any of the jurisdictions which permit the use of an
FOA Master Netting Agreement ('FOA Agreement'), the FOA Agreement
shall, subject to such modifications as are required for such a
jurisdiction, be deemed to be incorporated within this Terms of
Business. Details of the relevant jurisdictions and copies of the
FOA Agreement are available from ICS on request.
26.3 As a consequence of the FOA Agreement, any relevant amounts due to
or from the Client shall be capable of netting at the option of
either ICS or the Client to the extent permitted by the FOA
Agreement. In the event of any conflict between the terms of this
Terms of Business and the FOA Agreement, then the FOA Agreement
shall prevail, but only to the extent of any such conflict.
27.
DEFAULT
27.1. If, at any time:
a) the Client fails to provide adequate instruction or payment or
provide adequate margin or other security or collateral to ICS
hereunder when due or required by ICS or if any instructions or
documents received by ICS are incomplete, incorrect or otherwise
inadequate;
b) the Client fails duly to perform or commits a breach of any
provision of this Terms of Business or the terms of any
transactions entered into with or through ICS or any associate
of ICS under or pursuant to this Terms of Business, other than
an obligation referred to in Paragraph 27.1(a), and such breach,
if capable of remedy, is not remedied by the Client within seven
calendar days of written notice to remedy the same by ICS;
c) the Client fails, on demand, to liquidate any debit
balance on any account the Client may have with ICS or any
associate;
d) the Client (being an individual) dies or has a bankruptcy
petition presented against the Client;
e) the Client (being a partnership) has a bankruptcy petition
presented against one or more of the Client's partners or the
partnership is wound up or otherwise terminated;
f) in relation to the Client (being a body corporate) an order is
made or resolution passed for the liquidation or winding up of
the Client whether compulsory or voluntary (other than for the
purpose of a bona fide reconstruction or amalgamation previously
approved in writing by ICS such consent not to be unreasonably
withheld or delayed); the Client compounds with or enters into
any arrangement or composition with or for the benefit of its
creditors (or proposes to do so) including any voluntary
arrangement as defined in the Insolvency Xxx 0000; the Client is
unable to pay its debts within the meaning of Section 123 of the
Insolvency Xxx 0000; or the Client ceases or threatens to cease
substantially to carry on its business generally or disposes or
threatens to dispose of any material part of its undertaking,
assets or revenues;
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g) a receiver, administrator, trustee or similar officer is
appointed or an encumbrancer takes possession with respect to
any part of the Client's assets, undertaking or revenues or any
distress, execution or other process is levied or enforced or
saved out upon or against any part of the Client's assets,
undertaking or revenues;
h) a petition is presented for the making of an administration
order under the Insolvency Xxx 0000 in respect of the Client;
i) in relation to any of the events described in clauses (d), (e),
(f), (g) or (h) above, circumstances exist under which any such
event may occur or similar or analogous proceedings are taken or
occur under the law of any other jurisdiction;
j) any security created by the Client pursuant to this Terms of
Business becomes enforceable or ceases, for any reason, to
constitute good and valid security or any obligation of the
Client for the payment or repayment of money, whether present or
future, actual or contingent, shall become payable prior to its
stated maturity or by reason of default or is not paid when due;
k) action is taken against ICS, or any associate, or against the
Client in relation to the Client's activities under the rules of
any exchange, clearing house or regulatory authority;
ICS may, in its sole discretion and without further notice to the
Client or prejudice to any other rights or claims of ICS exercise
all or any of the remedies specified in Paragraph 27.3 which
remedies shall be cumulative so that exercise of any one or more of
such remedies shall not preclude exercise of any other.
27.2. ICS shall, at any time, be entitled to suspend this Terms of
Business, with regard to new business, with the Client and the
Client's rights hereunder for any period reasonably necessary to
enable it to determine whether any of the events in Paragraph 27.1
has occurred.
27.3. In any of the circumstances described in Paragraph 27.1, ICS may
forthwith, without further notice and without prejudice to any
other right or remedy it may have:
a) require early settlement of any or all transactions entered into
by the Client pursuant to this Terms of Business;
b) cancel, rescind, close out, liquidate, determine or transfer
any or all of the Client's open or unperformed orders,
contracts or positions notwithstanding that the dates for
performance thereof may not have arrived;
c) sell, charge to any third party, or otherwise dispose of any
funds, investments or other property or assets (including cash)
held by way of margin or collateral or otherwise subject to the
custody or control of ICS or any associate under or pursuant to
this Terms of Business;
d) combine or consolidate any of the Client's accounts with ICS or
any associate of ICS under or pursuant to this Terms of Business
or exercise any other power conferred by Clause 25;
e) at the risk and expense of the Client, take such steps
including, without limitation, demanding additional margin,
borrowing on behalf of the Client or entering into sales,
purchases or other transactions including any purchase or buy-in
to cover short sales as it may reasonably consider to be
appropriate;
f) take any action it may be required to take under the default
rules of any exchange or clearing house;
g) enforce any security it may have in respect of the Client's
obligations;
h) terminate this Terms of Business and all or any related
agreements with the Client as ICS may, in its absolute
discretion, determine;
i) serve notice on the Client of the event of default whereupon the
Client shall be obliged to make immediate payment of all monies
due to ICS and to provide full cash cover for all contingent
liabilities of ICS in respect of all transactions, positions,
orders or investments or other obligations incurred by ICS for
or on behalf of the Client or;
j) take any other action which ICS reasonably considers appropriate
to protect its position.
For the avoidance of doubt no such action shall include or
constitute discretionary management as understood within the rules
of SFA
27.4 ICS shall have no liability whatsoever to the Client for any loss
or liability or loss of profit or gain incurred or suffered by the
Client in consequence of any excercise by ICS of any right or
remedy hereunder and any purchase, sale, transaction or other
action may be undertaken by ICS at such price and on such terms as
ICS shall determine provided that it shall at all times seek to
act in such a way as it reasonably believes will
11
minimise any potential loss and maximise any potential benefit to
the Client. The Client irrevocably appoints ICS as its attorney to
take action in the name of the Client for the purpose of exercising
any right or remedy hereunder.
27.5. In exercising any right or remedy pursuant to this Clause 27, ICS
is authorised to effect such currency conversions and enter into
such foreign exchange transactions with, or on behalf of, the
Client, as may reasonably be necessary, at such rates and in such
manner as ICS may reasonably determine.
27.6. Any restrictions on the power of ICS to sell or otherwise deal
with assets of the Client charged to ICS contained in the Law of
Property Xxx 0000 or any other applicable law are, to the extent
permitted by that law, excluded.
28. LIMITATION OF LIABILITY
28.1. Neither ICS nor any of its directors or employees shall be under
any liability whatsoever for any loss or damage sustained by the
Client, including any consequential loss, loss of profit or loss of
trading opportunity, as a result of any actual or proposed
transactions or as a direct or indirect result of any services
provided by ICS or any associate hereunder, including, without
limitation, any loss or damage resulting, directly or indirectly,
from:
a) any failure or delay or default on the part of the Client or any
third party which is not an associate of ICS, including any
exchange or clearing house, in providing accurate information or
performing its functions;
b) any event or circumstance beyond the reasonable control of ICS
including, but not limited to, any failure or defective
performance of any communication, settlement, computer or
accounting system or equipment; or
c) any reliance placed by the Client on any market or other
information supplied to the Client by ICS or any associate not
relating to the services hereunder. Such information may be
unverified and no representation or warranty is given as to the
accuracy or reasonableness of such information.
28.2. Nothing in Paragraph 28.1 will exclude any liability of ICS, its
associates or any of their respective directors, employees or
agents for any loss suffered by the Client such as is caused by the
wilful negligence, default or fraud of ICS, its associates or any
of their respective directors or employees.
28.3. Nothing in this Terms of Business will exclude or restrict any
duty or liability or will entitle ICS to be compensated or
indemnified against the consequences to ICS of any contravention by
ICS of any duty which arises under the FSA, the rules of SFA or the
rules and regulations of any relevant exchange which may not be
excluded or restricted.
29. INDEMNITY
29.1. Notwithstanding any termination of this Terms of Business the
Client shall agree to indemnify and keep indemnified on a
continuing basis ICS, its directors or employees on reasonable
demand from and against all demands, claims, liabilities, losses,
damages, costs and expenses whatsoever including all interest,
penalties, reasonable legal and other costs and expenses, together
with value added tax and similar taxes (other than corporation tax
on the overall net income of ICS or any associate thereon) made,
suffered or incurred, directly or indirectly, by ICS, its directors
or employees as a result of:
a) the due performance by ICS of its obligations or the provision
of its services hereunder; or
b) any default, breach or failure by the Client in the performance
of its obligations hereunder including, without limitation, any
failure to make delivery or to meet margin calls; or
c) any representation or warranty given by or on behalf of the
Client being untrue or misleading in any material respect; or
d) the occurrence of any of the events referred to in Paragraph 27;
save to the extent the same arises from the negligence, default,
breach of this Terms of Business or fraud of ICS, its directors or
employees.
29.2. The Client undertakes to indemnify ICS on demand against any loss
or liability incurred by ICS, together with any related legal or
other expenses incurred by ICS, in acting upon instructions which
ICS believes, in good faith, to have been received from any
authorised employee, agent, officer or other representative of the
Client or from any duly authorised third party.
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30. CONFIDENTIALITY
30.1. ICS undertakes to keep and treat as confidential any information
concerning the business, assets, dealings or affairs of the Client,
always provided that:
a) such undertaking shall not extend to information which is
already within the public domain or to disclosure by ICS to an
associate where reasonably required in connection with this
Terms of Business; and
b) ICS shall be permitted to disclose such information if legally
required to do so or if requested to do so by any regulatory
authority or Exchange having jurisdiction over ICS or the
Client.
31. DELEGATION AND ASSIGNMENT OF POWERS
31.1. ICS may delegate or otherwise assign to any of its associates or
successors from time to time in existence any of its powers, duties
or benefits hereunder.
31.2. The Client's rights and obligations arising out of this Terms of
Business or interest in any monies or securities or other assets of
the Client held or controlled by ICS or any nominee or custodian
of ICS for the time being may not be assigned or otherwise
transferred without ICS's prior written consent.
32. VARIATION
32.1. Without prejudice to any outstanding order or transaction or any
rights or obligations subsisting at such time, ICS shall have the
right to amend or revoke the terms and conditions of this Terms of
Business at ICS's absolute discretion. Such amendment or revocation
shall be notified to the Client in writing and shall be deemed to
have been accepted by the Client unless written notice of objection
is received within five business days after the deemed date of
receipt of such notification.
32.2. This Terms of Business will be considered to be amended, mutatis
mutandis, without separate confirmation, for any change to the
rules of SFA or any relevant statute or rules and regulations which
come into effect after the date of this Terms of Business.
33. SEVERABILITY
33.1. If at any time any provision herein is or becomes illegal, invalid
or unenforceable in any respect by virtue of any law of any
jurisdiction or otherwise, neither the legality, validity or
enforceability of any other provision hereof or of such provision
under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
34. LIFFE RULES
34.1. As a member of LIFFE, ICS is required by the rules of LIFFE to
include certain terms (as amended from time to time by LIFFE) as
part of ICS's Terms of Business agreement with the Client. These
terms apply in relation to any LIFFE business and, where expressly
provided otherwise, to non-LIFFE business and are set out in
Appendix C.
35. WAIVERS
35.1. Any failure by ICS or the Client to insist upon strict compliance
with this Terms of Business shall not constitute nor be deemed to
constitute a waiver by it of any of its rights or remedies. The
rights and remedies conferred upon ICS and the Client hereby shall
be cumulative and the exercise or waiver of any part thereof shall
not preclude or inhibit the exercise of any other or additional
rights and remedies.
36. NOTICES AND INSTRUCTIONS
36.1. Any instruction, notice or communication given hereunder or in
connection herewith shall be sufficiently given or served if
delivered to the Client personally or if sent by first class post,
telex or facsimile to the Client at the address stated herein or to
such other address as shall from time to time have been notified in
writing by the Client to ICS for such purposes in accordance with
the provisions of this Clause.
36.2. Any such instruction, notice or communication shall be deemed to
have been received by the Client on the same business day as
dispatched by ICS if delivered to the Client personally or if sent
by telex or facsimile to the Client or to have been received on the
third business day after the date of posting if sent by first class
post.
37. TERMINATION
37.01. ICS may terminate this Terms of Business at any time by giving the
Client one months' notice in writing or forthwith upon written
notice in any of the circumstances set out in Clause 27, or upon
any of the following events:
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a) any judgement or order is entered against the Client, in
relation to Paragraph 27.1 k) or otherwise, which has, or may
have, in the reasonable opinion of ICS, a material adverse
effect on the reputation or financial standing of ICS, any
associate or the Client;
b) it is determined that, or ICS has reasonable cause to believe
that, any information or assertion provided or made to ICS is,
or becomes, or will become, in any material way inaccurate or
misleading; or
c) ICS, in its absolute discretion, considers it necessary or
desirable for its own protection of the Client;
37.2. The Client may terminate this Terms of Business at any time by
giving ICS three months' notice in writing. ICS may agree to accept
a lesser period of notice but, in the event that it does so,
reserves the right to charge fees as may be appropriate for the
entirety of such three month period.
37.3. Any termination of this Terms of Business will not prejudice any
accrued rights or obligations relating to any transaction effected
prior to termination or any right or remedy available to ICS or any
associate or any provision of this Terms of Business intended to
survive termination.
38. FORCE MAJEURE
38.1 It is hereby agreed that ICS shall not be liable or have any
responsibility of any kind to the Client for the non-performance of
any of ICS's obligations hereunder or any loss or damage thereby
incurred by reason of any cause beyond the control of ICS,
including any breakdown or failure of transmission or
communication or computer facilities, postal or other strikes or
similar industrial action and the failure of any relevant exchange,
clearing house and/or broker for any reason to perform its
obligations.
39. APPLICABLE RULES AND REGULATIONS
39.1. All transactions undertaken by ICS shall be subject to the rules
and regulations, provisions and usages of any relevant Exchange or
clearing house and to all applicable laws or regulations.
39.2. In the event of any conflict between this Terms of Business and
any mandatory provision of the rules of SFA or the rules of any
other regulatory authority or Exchange which ICS is from time to
time regulated by or a member of, the rules of SFA or the rules of
such regulatory authority or Exchange shall, to the extent of any
conflict, prevail.
40. GOVERNING LAW AND JURISDICTION
40.1. This Terms of Business shall be governed by and construed in
accordance with English Law.
40.2. Subject to the arbitration provisions relating to LIFFE contained
in Appendix C the Client irrevocably submits to the exclusive
jurisdiction of the English courts to settle any dispute or claim
which may arise out of or in connection with this Terms of Business
always provided that this shall not prevent ICS or the Client
bringing an action in the courts of any other competent
jurisdiction.
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AGREEMENT AND ACCEPTANCE
Acknowledgement of the Client's acceptance of this Terms of Business is
evidenced by signing and returning to the Company the duplicate of this Terms of
Business.
Yours sincerely
For and on behalf of MeesPierson ICS Limited
DIRECTOR COMPLIANCE OFFICER
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I AGREE WITH AND ACCEPT THE TERMS AND CONDITIONS SET OUT IN THIS TERMS OF
BUSINESS.
Accepted by:
Signed: /s/ XXXXXX XXXXXX XXXXX
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Name (capitals): Xxxxxx Xxxxxx Xxxxx
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For and on behalf of: Hull Trading Asia Limited
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Dated: March 11, 1998
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