1. Purpose and Scope
1.1 The purpose of these Terms (“Terms”) is to govern the relationship between DELTEC BANK & TRUST LIMITED (hereinafter referred to as the “Bank”, which term shall include its officers, directors, employees, agents, successors in title and assigns) and the undersigned persons (hereinafter collectively referred to as the “Client”). They shall apply to any account which the Client may open with the Bank at any time.
1.2 The General Terms & Conditions shall be without prejudice to any other agreements between the Bank and the Client, as well as, for purposes of executing any and all transactions, to the regulations and practices of the relevant stock exchanges, markets and clearinghouses, and to the laws and regulations which apply in the countries where the transactions are carried out.
2. Definitions and Interpretation
2.1 The following words shall have the following meanings when used in these Terms:
2.1.1 Account has the meaning set out in the Client Investment Account Opening Form and Agreement between the Client and the Bank, into which these Terms are incorporated by reference, as amended from time to time.
2.1.2 Agreement has the meaning set out in the Client Investment Account Opening Form and Agreement between the Client and the Bank, into which these Terms are incorporated by reference, as amended from time to time.
2.1.3 Assets means the cash, securities or other assets held in the Account from time to time.
2.1.4 Client means the person(s) described as the Client in the Agreement, into which these Terms are incorporated by reference.
2.1.5 Discretionary Investment Management Services means the provision by the Bank of the service of managing the investment of the Assets in the Account on a discretionary basis for the account of the Client.
2.1.6 Electronic Channels Services means the provision of E-banking, Client File Exchange and Client Real Time Connectivity Services upon application and approval by the Bank for access and use of the same, each as defined in the Electronic Channels Services Agreement.
2.1.7 Execution Services means the provision by the Bank of the service of executing transactions in respect of the Account in accordance with instructions received by the Bank from the Client from time to time.
2.1.8 General Investment Experience means the general investment experience of the Client stipulated by the Client in the Agreement.
2.1.9 Investment Advisory Services means, the provision by the Bank of investment advisory services to the Client in respect of the Account comprising reviewing the Account periodically, supervising the portfolio of Assets throughout the year, making recommendations and advising the Client generally as to the investment of the Assets in the Account, including, as to the purchase, sale, retention, exchange, conversion of or dealing in investments or other assets, the exercise or non-exercise of rights in respect of investments and on the merits of investment opportunities.
2.1.10 Investment Services means Execution Services, Advisory Services or Discretionary Investment Management Services, as the case may be, requested by the Client and provided by the Bank to the Client in accordance with the terms of the Agreement and these Terms.
2.1.11 Investment Objectives and Restrictions means the investment objectives and restrictions of the Client in respect of the Account specified by the Client in the Agreement.
2.1.12 Risk Tolerance means the risk tolerance of the Client in respect of the Account stipulated by the Client in the Agreement.
2.2 Headings in these Terms are for convenience only and shall not affect the interpretation of these Terms.
2.3 All references in these Terms to the singular shall be deemed to be to the plural unless the context otherwise indicates.
2.4 Words importing the masculine gender shall include the feminine and neuter and vice versa.
3. Investment Services
3.1 The Bank shall provide the Investment Services to the Client in respect of the Account in accordance with the terms of the Agreement and these Terms.
3.2 In providing the Investment Services, the Bank shall have regard to the Investment Objectives and Restrictions, the Risk Tolerance, the General Investment Experience of the Client and any other matters stipulated by the Client in the Investment Information portion of the Agreement.
3.3 Further, in providing Investment Services through the Bank’s Electronic Channels Services to the Client, the Bank shall have regard to the Electronic Channels Services Agreement which is supplementary to these Terms. If any clause contained within the Electronic Channels Services Agreement is found to be contrary to these General Terms and Conditions, these Terms will take precedence.
3.4 Notwithstanding anything to the contrary contained herein, where Execution Services are provided by the Bank to the Client, it is understood and agreed that (i) the Bank shall not have any discretion to place or execute transactions in respect of the Account, (ii) transactions will only be executed by the Bank in respect of the Account upon receipt of the Client’s instruction, (iii) all investment decisions regarding the Account and the Assets shall be made by the Client and (iv) save as otherwise provided in clause 3.2 or required by the laws of The Bahamas, the Bank shall have no further responsibility in respect of the Account.
3.5 Notwithstanding anything to the contrary contained herein, where Discretionary Investment Management Services are provided by the Bank to the Client, subject to the provisions of clause 3.2 hereof, the Bank shall, unless otherwise directed in writing by the Client, have complete discretion for the account of the Client (and without prior reference to the Client) to purchase, sell, retain, exchange, convert or otherwise deal in investments or other assets, exercise or determine not to exercise rights in respect thereof, make deposits, subscribe to issues and offers for sale of any investments, advise on, execute and/or effect transactions on any markets, take all day-to-day decisions and otherwise act as the Bank in its sole discretion determines to be appropriate in relation to the management of the Assets in the Account.
3.6 Notwithstanding anything to the contrary contained herein, where Investment Advisory Services are provided by the Bank to the Client, (i) transactions will only be executed by the Bank in respect of the Account upon receipt of the Client’s instructions and (ii) subject to receipt of such instructions from the Client and the provisions of clause 3.2 hereof, the Bank shall have complete authority for the account of the Client to purchase, sell, retain, exchange, convert or otherwise deal in investments and other assets, exercise rights in respect thereof, make deposits, subscribe to issues and offers for sale of any investments, advise on, execute and/or effect transactions on any markets, take all day-to-day decisions and otherwise effect transactions on the Client’s behalf as and in such manner as the Bank in its sole discretion determines to be appropriate to give effect to the Client’s instructions.
3.7 Subject as provided in clauses 3.4, 3.5 and 3.6 hereof and specified by the Client in the Agreement, there are no restrictions on the types of securities, investment or other assets which may be recommended to the Client or acquired for the Account, the type of transactions which may be recommended to the Client, acquired for the Account or carried out in respect of any security or securities, investment(s) or assets, the amount of any one type of investment or asset which may be acquired for the Account, the proportion of the Assets in the Account which any one or type of investment or Asset may constitute or the markets or exchanges on or through which transactions may be executed or effected.
3.8 If restrictions on the investment of the Assets in the Account are specified by the Client in the Agreement, such restrictions shall be deemed not to be breached by subsequent variations in the value or price of any investment(s) or other Asset(s) in the Account.
3.9 The Bank will be responsible for the performance only of such duties as are set forth in the Agreement and these Terms and shall use the same care with respect to the safekeeping of the Assets in the Account as the Bank uses in respect of its own or similar property PROVIDED THAT the Bank need not maintain any insurance for its benefit. All collections or funds or other property paid in respect of Assets in the Account shall be made at the sole risk of the Client.
3.10 In principle, the Bank shall act only as an agent for all buy and sell orders, irrespective of whether or not they concern assets incorporated in securities. As such, it shall act in its own name but for the Client’s account and risk. In the case of some specific investments, the Bank reserves the right to act in the Client’s name with the Client’s consent. Also, in some cases, the Bank may act as the Client’s direct counterparty provided that its doing so is not detrimental to the Client.
3.11 If the total amount of orders is in excess of available balances or of outstanding loans extended to the Client, the Bank shall, at its discretion, decide which orders shall be executed in whole or in part, irrespective of the dates on which the orders were given to and received by the Bank. The Bank shall also be authorized to offset any debit balances with the amounts available in other currencies or in other accounts of the Client.
3.12 The Bank shall, at its sole discretion, be entitled to cancel revocable or open orders which have not been executed before the end of the third month following the date of their receipt by the Bank.
4. Custody Services
4.1 The Bank shall provide custody services to the Client in relation to the Assets in the Account in accordance with this clause 4.
4.2 Any Assets in the Account will be held separate and apart from the Bank’s own property in accordance with the provisions of the Securities Industry Act, 2011.
4.3 The Client hereby authorizes the Bank (i) to hold any cash in the Account, from time to time, in its capacity as banker and (ii) to utilize such cash in the ordinary course of its business, including without limitation, lending.
4.4 The Bank has the right to automatically sweep uninvested cash balances in excess of USD500,000.00 (five hundred thousand U.S. dollars) or equivalent in the Account into money market investment funds, interest-bearing deposit accounts or other such sweep arrangements made available to the Client (collectively “Cash Sweep Vehicles”), until these balances are invested by or on behalf of the Client or otherwise needed to satisfy obligations arising in connection with the Account. The ability to automatically sweep cash is described more fully in the Cash Sweep Disclosure Statement.
4.5 If the Client does not select a Cash Sweep Vehicle upon establishing the Account, the Cash Sweep Vehicle will be (and any cash balances transferred to) an available money market investment fund selected by the Bank. If the Client wishes to specify a different Cash Sweep Vehicle, the Client may do so at any time by contacting the Bank.
4.6 Bearer or other non-registered securities and Assets may not always be held by the Bank directly or in its physical possession but may be held by one or more third parties, including without limitation, clearing systems, sub-custodians and overseas agents directly or indirectly and may be for its or their account.
4.7 The Bank may transfer the Assets subject to this Agreement into the name of its nominee or into the name of a nominee appointed by the Bank and all such nominees and the Bank will be indemnified and held harmless by the Client from any liability as a holder of record.
4.8 Securities and other Assets in the Account registered or recorded in the name of a nominee may be pooled with those of one or more of the Bank’s other clients. Accordingly, the client’s individual entitlements may not be identifiable by separate certificates, physical documents or entries on the register or equivalent electronic records. If there is an irreconcilable shortfall following any default or failure by the custodian responsible for pooled Assets, the Client may not receive the Client’s full entitlement and may share in the shortfall pro rata to the Client’s original share of the Assets in the pool.
4.9 The Bank may, in its discretion and without being obliged to give any prior notification to the Client, use one or more sub-custodians to hold Assets and may delegate the provision of any custody service to any such sub-custodian. A sub-custodian may be another company in the group of companies to which the Bank belongs.
4.10 The appointment of a sub-custodian may be on such terms as the Bank may determine.
4.11 If a sub-custodian fails to account to the Bank for any Assets for any reason or otherwise fails to deliver up any Assets for the proceeds or sale thereof, or otherwise to perform its obligation, the Bank shall, in the absence of its own gross negligence or fraud have no liability arising out of the actions, omissions or default of any sub-custodian.
4.12 The Bank will collect any dividends, interest, payments or other entitlements to which the Client may be entitled in respect of securities held in the Account and of which the Bank is notified and will remit to the Client such dividends or interest as soon as possible after deduction of any taxes or duties payable, if any, or credit them to the Account.
4.13 Voting and voluntary rights and entitlements pertaining to the Assets will be dealt with by the Bank in accordance with its powers and authorities under these Terms.
4.14 Where the Client has a right to the return of any securities or other Assets, the Bank shall not be obliged to return the original securities or other Assets delivered to the Bank but merely to redeliver securities or other assets of the same type and nominal value and in the case of securities, of the same issuer.
5. Safeguarding Assets on Account
5.1 Where Execution and Custody Services are provided by the Bank to the Client, unless otherwise agreed to in writing, the Client shall be responsible for taking whatever action may be necessary to safeguard the rights attaching to the assets on deposit, e.g. give instructions to exercise or sell subscription rights, exercise options, make payments for partly paid shares and convert instruments. Failing any instructions from the Client, the Bank may take such action itself on the basis of what it presumes are the Client’s intentions, but without assuming any liability therefor.
6.1 Where Investment Advisory Services or Discretionary Investment Management Services are provided by the Bank to the Client, the Client hereby authorizes the Bank at its discretion to exercise or procure the exercise of any voting rights attaching to the Assets in the Account.
6.2 For Execution Services clients, the Bank shall not vote the shares of companies at their annual or special shareholders’ meetings, either directly or through a proxy designated by it, unless the Client has authorized the Bank to do so in the Investment Account Form executed by the Client.
7. Statements of Account and Contract Notes
7.1 The Bank shall provide periodic statements in respect of the Account in accordance with the instructions of the Client contained in the Agreement.
7.2 If requested by the Client in the Agreement, the Bank shall transmit a copy of its contract note in respect of each sale or purchase of securities effected by the Bank in respect of the Account.
7.3 The reference currency of the Account in which the Account statements shall be reported and calculated is the currency stipulated in the Agreement.
7.4 Statements of account and statements of Client assets held by the Bank are normally dated as of the end of every calendar month. As transactions involving the crediting or debiting of an account are booked, the respective claims of the Client and the Bank are automatically offset. Consequently, the Client may not claim any refunds in excess of the net credit balance of the account booked at a given time.
7.5 All amounts received or transfers executed by the Bank shall be credited, or debited up to the amount of the available balance or of an outstanding loan, in the relevant currency or, failing an account in such currency, in the Client’s reference currency, unless the Bank is instructed otherwise. The same shall apply to securities income and redemptions. Charges shall be debited in the reference currency, unless the Client has instructed otherwise.
7.6 The equivalent value of the Client’s assets in foreign currencies shall be deposited with the Bank’s correspondents, either within or outside the respective currency area, in the Bank’s name but at the Client’s risk. Such assets shall be subject to local taxes, restrictions and other requirements. Such assets may be recovered through sales, transfers or deliveries of checks drawn on the respective countries, or by any other means which may be required by the circumstances.
7.7 If the Client’s account is credited with an amount on the basis of a money order, transfer advice or any other transaction for which the Bank is not required to credit the amount to the Client before having received the amount concerned, the credit advice or statement of account sent to the Client shall, even if not so specified, be considered to have been issued “subject to collection”, i.e. provided that the amount accruing to the Bank has in fact been transferred to it via a credit entry in the Bank’s account with one of its correspondents, or in any other way.
8. Security prices and other information
8.1 Prices and information relating to the Account will be obtained from sources which the Bank believes to be reliable. However, the Client understands and acknowledges that the Bank cannot guarantee the accuracy OR the completeness of the information nor does the Bank make ANY representation, express or implied, that any prices necessarily reflect the proceeds which may be received on the sale of any security.
9. Disclosure of certain risks
9.1 All forms of investment which may be undertaken by the Bank on behalf of the Client or which may be recommended to the Client involve risk.
9.2 The value of the Assets and the income derived from them can fall as well as rise and is not guaranteed.
10. Potential conflicts of interest
10.1 The Bank hereby draws the Client’s attention to the fact that, because of the Bank’s business lines, it may provide services and advice to clients whose interests may be opposed to or in conflict with the Client’s own interests and the Client accepts that fact. The Bank undertakes to see that its internal organization is appropriate to either avoid conflicts of interest entirely or to see that the Client’s interests are taken into account in an equitable manner when such conflicts do arise.
10.2 In managing the Client’s assets, and in placing and executing orders for that purpose, the Bank shall be authorized by the Client to receive rebates, commissions or other fees from third parties, and the Client agrees that such compensation shall accrue to the Bank. In addition, the Client authorizes the Bank to pay rebates or other fees to third parties.
10.3 The Bank may, without prior reference to the Client, recommend and/or effect transactions in which, or provide services in circumstances where, the Bank has, directly or indirectly, a material interest or a relationship of any description with another party which may involve a potential conflict with the Bank’s duty to the Client. If the Bank has a material interest in a transaction to be entered for the Client in respect of the Account, or a relationship which gives rise to a conflict of interest in relation to the transaction, the Bank shall not knowingly either advise, or exercise discretion, in relation to that transaction unless the Bank has (i) fairly disclosed that material interest or relationship to the Client and (ii) taken reasonable steps to ensure that neither the material interest nor relationship adversely affect the interests of the Client.
11. Fees and Expenses
11.1 In consideration of the performance of its functions hereunder, the Client agrees to pay the Bank fees in accordance with the Bank’s fee schedule as published from time to time or as otherwise agreed between the Bank and the Client in writing. The current fee schedule of the Bank is appended to the Agreement and incorporated by reference. The Bank shall be entitled to additional compensation from the Client for any extraordinary services requested or required by the Client.
11.2 The Client understands and agrees that all out-of-pocket expenses incurred by the Bank in connection with the operation of the Account shall be charged to the Client and may be debited from the Account.
11.3 The Client shall be responsible for the payment of any commissions, transfer fees, registration fees, taxes, stamp duties and all other liabilities, costs and other expenses payable or incurred by the Bank on behalf of the Client under these Terms.
11.4 All sums due to the Bank or any other person in respect of commissions, fees, expenses, interest, taxes or otherwise pursuant to the Agreement and these Terms, may be withdrawn from the Account and the Bank is hereby given authority in its capacity as custodian to make payment of all invoices and other requests for payment in respect thereof.
11.5 The Bank is authorized to realize on behalf of the Client investments and other Assets comprised in the Account in order to meet any obligation of the kind referred to in clause 11.4 above.
11.6 The Bank is permitted to enter into arrangements relating to the execution of transactions on behalf of the Client whereby it receives goods or services related to the execution of trades or the provision of research.
11.7 The Bank shall be entitled to retain and shall not be liable to account to the Client for any commissions, profits, brokerage discounts, rebates or remuneration made or received by or allowed to be received by the Bank by reason of any transaction recommended to the Client or undertaken with or for the Client.
11.8 The provisions of this clause 11 shall survive the termination of the Agreement and these Terms.
12.1 The Client charges to the Bank by way of first fixed charge:
12.1.1 (i) all sums standing to the credit of any accounts (the “Deposit”, which expression includes all other sums from time to time standing to the credit of the Client either individually or jointly with any other person on any account with the Bank) in any currency and whether in addition to or by way of renewal of or replacement for any sums previously deposited with the Bank by the Client or otherwise together, in each case, with any interest from time to time in respect thereof to the intent that such charge shall operate as a release in the Bank’s favour of the Bank’s debt to the Client represented by the Deposit; and
12.1.2 (ii) all moneys, assets, collateral and all benefits, rights and entitlements therefrom as a continuing security for the payment and discharge to the Bank on demand of all moneys and the satisfaction of all liabilities, present or future, actual or contingent (including liabilities as surety or guarantee) for which the Client may be or become liable to the Bank on any account or in any manner whatsoever and whether alone or jointly with any other persons and whether as principal or surety, together with all interest, commissions, fees, charges, costs and expenses incurred by the Bank in relation to the Client of the property hereby charged and which the Bank may incur in enforcing its charge or in obtaining payment from the Client or in attempting to do so.
13.1 For better securing the Deposit and any moneys, assets and/or collateral the Client agrees that, if and for so long as any moneys or liabilities whatsoever are outstanding to the Bank:
13.1.1 any mandate which but for the charge in favour of the Bank would govern the operation of the Deposit shall be suspended,
13.1.2 notwithstanding the foregoing the Bank may at any time in its discretion be entitled (but not bound) to accept any request from the Client given in conformity with any suspended mandate with regard to the Deposit or any moneys, assets or collateral (including withdrawal of moneys and payment of interest) but in acting upon any such request the Bank shall be deemed not to have released its charge or otherwise waived its rights,
13.1.3 no liability whatsoever shall attach to the Bank in acting or refusing or neglecting to act on any request from the Client,
13.1.4 if the Deposit shall be held at any time on an interest bearing account, it shall at expiry be redeposited upon such terms as may be agreed with the Client or, failing agreement, upon such terms as the Bank shall determine in its discretion, and
13.1.5 the Client will, upon the Bank’s request, execute and sign all such transfers, powers of attorney or other documents as the Bank may require to effect the registration of the assets and/or collateral in the name of the Bank or its nominee or a purchaser or a transferee.
14. Lien and Right of Set-Off
14.1 Should the Client fail to pay on demand any liability owed to the Bank or if any other event of default specified in any facility agreement between the Bank and the Client occurs, then the Client acknowledges that at any time thereafter, and without prejudice to any other right or remedy the Bank may have:
14.1.1 the Bank shall have a lien on all monies securities, precious metals, holdings, claims or other assets and valuables which are held, managed or booked by the Bank for the Client’s account, either directly or through correspondents retained by the Bank. If the Bank judges that the value of the assets subject to the said lien is insufficient to secure a claim, it shall be entitled to require the Client to add to the aggregate of the moneys, assets or additional collateral held by the Bank for the Client within a specified period of time. If the Client fails to do so, the Bank’s claim shall become immediately payable and the Bank shall be entitled, without further notice to treat all such moneys, assets and or collateral under the charge mentioned above and to sell all or part of the cash, assets or collateral, up to the amount of its claim plus interest, commissions, expenses and all incidental items, within such period and in such manner and order as it shall see fit, either on an exchange or through private transactions. The Bank may, if appropriate, purchase the pledged assets at their market value as determined by market conditions.
14.1.2 the Bank may set off the Client’s accounts against one another, irrespective of the maturity dates of the assets and/or collateral held in such accounts and whether the accounts are in the same currency or in different currencies.
15. Liability and Indemnity
15.1 The Bank gives no warranty or guarantee as to the recommendations and/or advice given by the Bank under or pursuant to these Terms, the performance or profitability of the Assets or any part thereof or that the investment objectives of the Client set out in the Agreement will be achieved. The Bank cannot guarantee that investments and other assets acquired or recommended for the Account will not depreciate in value or that they will not be affected by adverse tax consequences. The Client and any professional tax adviser of the Client remain responsible for the management of the Client’s affairs for tax purposes.
15.2 The Bank shall not be liable for:
15.2.1 the default of any counterparty, bank, custodian, sub-custodian, nominee or any other entity which holds money, investments or other documents of title on behalf of the Client or with or through whom transactions on behalf of the Client are conducted with respect to the Assets; or
15.2.2 any loss, damage, cost or expense occasioned by delay in the actual receipt of notice by the Bank of any payment, redemption or other transaction regarding Assets in the Account in respect of which the Bank is authorized to take some action;
15.2.3 any failure or delay by any exchange, market or clearing house, or broker or dealer in performing its obligations (including with respect to the delivery or re-delivery of Assets) with respect to any transactions executed for the Account; or
15.2.4 in the event of any errors, omissions or faulty execution on part of a sub-agent, the Bank’s liability shall extend only to the care with which it has selected and instructed them.
15.2.5 any failure to perform its responsibilities under the Agreement or these Terms if such performance would result in a breach of any applicable laws, regulations, guidelines, policies or the Bank’s policies and code of conduct.
15.3 The Bank shall not be liable for any error of judgment or any loss, charge, cost or expense suffered by the Client in connection with the Investment Services provided to the Client in accordance with these Terms and the Agreement (including, without limitation, any loss which may be sustained in the purchase, holding or sale of any investments or other Assets in connection with such Investment Services, any loss to the Assets due to any failure, depreciation or loss of any investment or any loss or decrease in value of any funds in any currency placed with a recognized banking institution whether by way of time deposit or otherwise and whether placed in the name of the Client or in the name of the Bank) unless such loss, charge, cost or expense arises from the gross negligence or fraud of the Bank.
15.4 If the Client gives specific instructions to the Bank in respect of the Account or the Assets, the Client shall assume full responsibility for the implications that such instructions may have on the services provided by the Bank in connection with the Assets. The Client shall be responsible and the Bank shall not be liable for any damage or other losses which may result from the fact that the Client, any duly authorized attorney of the Client or other third party has become incompetent, unless the Bank has been so informed in writing.
15.5 The Client undertakes to keep the Bank and its agents, delegates, officers, directors, members and employees fully and effectively indemnified against all costs, losses, charges, liabilities, expenses and claims whatsoever incurred by it or them pursuant to or in connection with the Agreement and these Terms unless due to its or their respective gross negligence or fraud.
15.6 The provisions of this clause 15 shall survive the death, incompetence, bankruptcy or insolvency of the Client or its duly authorized representative(s) and the termination of the Agreement and these Terms.
16.1 The Client represents and warrants that (i) the Client has full power and authority to appoint the Bank in accordance with the terms of the Agreement and these Terms, (ii) all necessary corporate action (if required) has been taken to authorize the execution, delivery and performance of the Agreement and these Terms, (iii) when executed and delivered, the Agreement and these Terms will constitute legal, valid and binding obligations of the Client, enforceable in accordance with their respective terms, (iv) Client is the legal and beneficial owner of the Assets and no other person has a legal or beneficial interest therein, unless otherwise disclosed to the Bank in writing, (v) other than in favour of the Bank in accordance with the Bank’s Terms, the Assets are free from all liens, charges or other encumbrances and that no liens, charges or other encumbrances shall arise from the Client’s acts or omissions, (vi) any information which is provided to the Bank is complete and accurate, (vii) such property, assets or sums which may be credited to the facility or facilities have not derived from criminal conduct, are not the proceeds of crime or illicit, activities, and are not being used to finance acts of terrorism, (viii) in the case of the establishment of a trust, the Client has no knowledge of any existing or contingent debts which the Client is unable to satisfy and further that, before and after transferring assets into trust the Client remains solvent, and furthermore, is not aware of any material pending litigation against the Client nor is the Client aware of any event of whatsoever nature, which could give rise to such litigation and (ix) the Client has obtained independent legal, tax or other professional advice which the Client considers necessary or desirable in connection with the entry into the Agreement and these Terms.
16.2 The Client agrees to promptly provide the Bank, with any further information that may be required by any competent authority or that the Bank may require to enable the Bank to fulfill its contractual, legal or regulatory obligations or to comply with the rules and regulations of any relevant jurisdiction, exchange, market or regulatory authority, in each case, applicable from time to time to the Bank, the Client and/or the Assets or to comply with the Bank’s internal policies. Furthermore, the Client hereby authorizes the Bank to obtain independent verification of any information provided by the Client or obtain such further information or make such further enquiries as the Bank may, at its discretion, require.
16.3 The Client acknowledges that the Client is responsible for being aware of and observing laws, regulations and rules applicable to the Client’s use of the Investment Services, including those imposed by the Client’s country of residence or domicile.
16.4 The Client undertakes to voluntarily inform the Bank within thirty days of any change in his/her/its situation, in particular a change of tax domicile or nationality. The Client shall be held liable by the Bank for any damages which may result from receiving incorrect information about the Client’s personal or tax status.
16.5 The Client acknowledges and agrees that any breach of the representations and warranties given by the Client under this clause 16 or any breach of the provisions of the Agreement and these Terms may adversely affect the Assets and the provision of services by the Bank under these Terms and the Agreement.
17. Accounts with More than One Accountholder
17.1 The provisions of this Article 17 apply where the Client consists of more than one person (in this Article 17, each a “joint holder”).
17.2 Each joint holder is jointly and severally liable to the Bank for the obligations of all and any of the jointholders.
17.3 Unless and until the Bank receives written notice signed by all of the Clients withdrawing or varying the same so as to limit such authority to a specific named individual: (a) each joint holder has full authority on behalf of the joint holders to deal with the Bank as fully and completely as if such joint holder were the sole owner of the account without notice to the other joint holders, (b) any of the joint holders may give the Bank an effective and final discharge in respect of any of their obligations and (c) any notice or communication given to one joint holder shall be deemed to be given to all provided that, notwithstanding the foregoing, the Bank reserves the right in its sole discretion (i) to require joint written instructions from some or all of the joint holders before taking any action hereunder or (ii) if the Bank receives written instructions from a joint holder which in the Bank’s opinion conflict with or are inconsistent with other instructions, advise one or more joint holders of such conflict or inconsistency and/or take no action on any such instructions until the Bank receives further instructions satisfactory to the Bank.
17.4 On the death of any one joint holder, the relationship between the Bank and the surviving joint holder(s) shall not terminate and the terms and conditions hereof shall remain binding on the other joint holder(s) and the Bank may treat such survivor(s) as the only persons party to this agreement with the Bank.
17.5 The liability of a partnership to the Bank shall be the joint and several liabilities of the partners in the partnership and such liability shall not be terminated, prejudiced or affected by the death of any one or more such partners.
18. Use of agents
18.1 The Bank may appoint agents (including affiliates) to perform any administrative or ancillary services required to enable the Bank to provide the Investment Services in accordance with the Agreement and these Terms. The Bank will act in good faith and with reasonable skill and care in its choice and use of such agents.
19. Assignment and third parties
19.1 The rights and obligations of the Bank hereunder may be assigned or transferred at any time. The rights and obligations of the Client hereunder may not be assigned or transferred without the prior consent of the Bank.
20. Notices, instructions and other communications
20.1 The Client may communicate with the Bank by post, telephone, electronic mail, through use of the Bank’s Electronic Channels Services, or fax using the appropriate address and other contact details provided by the Bank to the Client from time to time. Communications from the Client to the Bank shall be deemed to have been received upon receipt by the Bank.
20.2 All instructions from the Client to the Bank shall be given in writing, orally, by telephone, electronic mail, facsimile or by such other medium, including throughthe Bank’sElectronic Channels,agreed between the Client and the Bank in writing. If the Client wishes the Bank to act on telephone, electronic mail or facsimile instructions, the Client shall complete “Instructions Given by Telephone, Electronic Mail or Facsimile” form. If the Client wishes to communicate with the Bank through use of the Bank’s Electronic Channels Services, the Client shall complete “the Electronic Channels Services Agreement”.
20.3 Where the Client wishes the Bank to act on the instructions of a third party, the Client agrees to execute an “Authorized Signatures and Power of Attorney” form appointing such person.
20.4 Only the powers of attorney and specimen signatures provided to the Bank shall be considered to be valid unless and until it is notified in writing that they have been revoked or changed in any way.
20.5 The Client authorizes the Bank to rely and act on any instructions or other communications which purport to have been given (and which are reasonably accepted by the Bank) as being given by the Client or from any person duly authorized to act on behalf of the Client unless the Bank has received written notice to the contrary, whether or not the authority of such authorized representative shall have been terminated. The Client agrees to indemnify and hold the Bank harmless against all payments, claims, losses, demands, proceedings and expenses incurred or suffered by the Bank directly or indirectly by reason of or in connection with the Bank executing and acting upon any instructions from the Client or an authorized representative of the Client prior to receipt by the Bank of notice of the death or incompetency of the Client or its duly authorized representative or of the termination of the authority of the Client’s duly authorized representative (if any).
20.6 Although under no obligation to do so, the Bank reserves the right to require particulars enabling it to verify the identity of the originator of an order or instruction or to require written confirmation of any order or instruction. The Bank may refuse to act on any instruction if the Bank has good reason to believe that the Client or a duly authorized representative of the Client did not give the instruction, the person giving the instruction has not been properly identified, the instruction is not clear or the Bank believes that in carrying out such instruction the Bank may breach any law, regulation or guideline applicable to the Bank or the Bank’s internal policies. The Bank shall not be liable for refusing to act on any instruction in such circumstances.
20.7 For the purpose of ensuring that oral instructions or other messages received from the Client or third parties are authentic and understandable, the Client agrees to allow the Bank to record such of the telephone conversations between its staff members and the Client, the Client’s attorneys or any other third parties as the Bank in its absolute discretion determines. In the event of dispute, the Bank reserves the right to use such recorded conversations as evidence.
20.8 If the Client agrees with the Bank to communicate by e-mail, without prejudice to the foregoing, the Client acknowledges that messages sent by the Internet cannot be secured, that neither the Client’s nor the Bank’s identity as an Internet user, nor the content of any messages, can be kept secret, and also that data flows between the Client and the Bank, whether encrypted or not, may enable third parties to infer the existence of a banking relationship. Consequently, notwithstanding any other provision contained herein, if the Client wishes to use the Internet to communicate with the Bank, such Client shall alone assume all the risks and bear all consequences which that may entail.
20.9 If the Client agrees with the Bank to utilize Electronic Channels Services, without prejudice to the foregoing, the Client acknowledges that the Client is solely responsible for all access to and use of the Electronic Channels and the Electronic Channels Services. Usage of their Channel User ID and Channel Password to gain access to any of the Electronic Channels Services will be presumed by the Bank to, in fact, be the actual Client or the Client’s authorized representative, and the Bank will continue to act on or carry out any instructions given or transactions requested by the Client or the Client’s authorized representative accordingly. The Client shall, therefore, be fully responsible for any transactions or instructions that have been made without their consent or authorisation and such liability of the Client shall only cease upon such time as notification is given to the Bank in writing and via telephone and received by the Bank in accordance with the Electronic Channels Services Agreement.
20.10 If use is made of the mail service, the telephone, a facsimile machine or any other means of transmission or transportation, the Client shall assume all the risks and bear all the consequences which that may entail, and unless there is gross negligence on its part, the Bank shall assume no liability with respect to whether messages are authentic, confidential understandable, misrouted, delayed, lost or not received in full, or whether there may be identification or transmission errors.
20.11 All authorizations and instructions, unless they otherwise expressly provide, shall continue to be effective until cancelled by the Client or the Client’s duly authorized representative and written notice of such cancellation is received by the Bank or until superseded by subsequent instructions received by the Bank.
20.12 In the event of any damages resulting from non-execution, or incorrect, incomplete or belated execution of instructions (other than buy and sell orders), the Bank shall, unless there has been gross negligence on its part assume liability only for interest lost, unless its attention had been drawn in writing to the risk of more extensive damages.
20.13 Any notification, instruction or communication given to the Bank under the Agreement and these Terms to be effective (i) must comply with the requirements stipulated by the Client in the Agreement and (ii) shall take effect upon actual receipt by the Bank.
20.14 The Client shall be responsible for any damages of any kind resulting from false or failed authentication which may escape notice when t h e Bank’s normal verification is performed, unless there is gross negligence on the part of the Bank.
20.15 All written communications from the Bank to the Client shall be sent to the contact details and other appropriate address provided by the Client to the Bank from time to time.
20.16 If contact with the Client is lost, the Client agrees to bear any and all costs incurred by the Bank when trying to restore such contact. The Client acknowledges that the appropriate legal or regulatory authority shall have to be informed about the Account and the Assets if the Bank is unsuccessful in restoring contact.
20.17 Should an account become dormant Bahamian Law stipulates that the Bank must transfer the amounts held in the account in full to the Central Bank of the Bahamas. A Dormant account is an account that has had no customer initiated activity for over seven (7) years.
21. Credit Cards and Held Mail
21.1 If the Client receives credit cards through the Bank and requests the Bank to hold their mail and to receive and pay their bills by debiting their accounts, such Client shall accept the risk of using their credit cards, in particular the risk of not being able to protest their bills within the specified time limits. The Bank shall not be liable for any damages which may result from the use of their credit cards.
22.1 The Bank reserves the right to amend these Terms at any time. The Client shall be informed of such amendments in writing or in any other appropriate manner. The Bank will ordinarily give the Client at least one month’s notice of any changes. However, the Bank may implement changes without notice if the Bank determines that such changes are necessary to comply with any legal or regulatory requirements or to improve the Investment Services provided by the Bank to the Client. If the Client does not object to such amendments within seven (7) days, they are deemed to have been approved.
23.1 The Client may terminate the Agreement at any time upon immediate written notice to the Bank. The Bank reserves the right to cancel all credit lines and to declare that all of its claims against the Client have become due and payable and the Client agrees to pay all amounts due and owing to the Bank which have not been deducted from the Client’s accounts with the Bank prior to the termination of the relationship. Notwithstanding the foregoing, the Bank may not close a Client’s account unless the Client returns any unused cheques, credit cards or other equipment which the Bank has provided.
23.2 The Bank may terminate the Agreement upon immediate written notice to the Client.
23.3 Termination of the Agreement pursuant to clause 23.1 above, shall be (i) without prejudice to the completion of any transaction or transactions already initiated and any transaction or transactions outstanding at the time of termination will be settled and delivery made, (ii) without prejudice to and shall not affect any accrued rights, existing commitments or any contractual provision intended to survive termination and (iii) without penalty or other additional payment save that the Client shall be obligated to pay (a) the fees and charges accrued and due to the Bank pro-rated to the date of termination, (b) any expenses incurred by the Bank under these Terms payable by the Client, (c) any additional expenses incurred by the Bank in terminating this Agreement and (d) any losses realized in settling or concluding outstanding obligations.
23.4 On, following or in connection with termination of this Agreement, the Bank shall be entitled, without prior notice to the Client, to take such actions as may be required to give effect to the provisions of clauses 23.1 or 23.2 above and/or to settle or complete transactions already initiated and to pay or discharge any outstanding liabilities or obligations of the Client.
24.1 The Bank is not obliged to disclose to the Client or in making any recommendation or taking any action in connection with the provision of the Investment Services to take into consideration information where (i) the disclosure of such information to the Client would be a breach of duty or confidence to any other person or (ii) which comes to the notice of any employee, officer or agent of the Bank, but does not come to the actual notice of the individual making the decision or giving the advice in question.
24.2 The Client hereby authorizes and consents to the disclosure by the Bank of any information relating to the Assets, the Account and the Client (including the beneficial owners and addresses of the Client):
24.2.1 to comply with applicable legal or regulatory requirements, the request of any regulatory agency or authority or any court of competent jurisdiction;
24.2.2 to any investment fund or its authorized representatives in which the Bank invests on behalf of the Client or any service provider to such investment fund;
24.2.3 to ensure compliance by the Bank with anti-money laundering and counter terrorist financing laws in any applicable jurisdiction;
24.2.4 to agents, affiliates, third party consultants, investment managers or service providers of the Bank, including without limitation the Bank’s auditors or attorneys; or
24.2.5 to any financial institution or correspondent bank in connection with the provision by the Bank of the Investment Services;
24.2.6 to enable the Bank to outsource any of the Investment Services to third parties or to communicate with third parties, as may be necessary to enable the Bank to provide the Investment Services; or
24.2.7 where otherwise required in connection with the provision by the Bank of the Investment Services.
24.2.8 The Bank may store the Client’s personal data electronically and process them by computer or in any other way, most particularly so that it may fulfill its due diligence obligations, execute any and all transactions, manage and/or administer the Client’s account and use such data in assessing creditworthiness or performing statistical analysis.
24.2.9 The Bank is required by applicable law and regulation to maintain a business continuity plan to ensure that specified operations of the Bank can be maintained or recovered in the event of a disaster or major operational disruption. The Client acknowledges that if such a disaster or operational disruption occurs, the operations of the Bank might be temporarily relocated to a jurisdiction outside of The Bahamas and the Bank will be required to comply with applicable legal and regulatory requirements in such jurisdiction.
24.3 If Client is a U.S. person, Client authorizes Bank to provide the relevant account data to U.S. authorities in compliance with the regulations of the Internal Revenue Code of the United States, such as of the Foreign Account Tax Compliance Act. The Client authorizes the Bank to provide relevant account data to the relevant Reportable Jurisdiction as applicable, pursuant to the Automatic Exchange of Financial Account Information Act, 2016.
24.4 The provisions of this clause 24 shall survive the termination of the Agreement and these Terms.
25. Standard of Liability
25.1 Without prejudice to any other provision contained herein, the Bank will not be liable for any loss, damage or expense whatsoever however arising suffered by the Client or any other person arising directly or indirectly out of the performance of its duties hereunder unless arising from the gross negligence of the Bank.
25.2 Without prejudice to any other provision contained herein, the Client shall indemnify, defend and hold harmless the Bank from and against any action, suit, proceeding, investigation, loss, liability, cost or expense whatsoever, (including without limitation, reasonable attorneys’ fees and disbursements and amounts paid in settlement), which may be brought against or suffered by the Bank arising directly or indirectly out of or in connection with the Bank’s performance of its duties hereunder unless caused by the gross negligence of the Bank.
25.3 The provisions of this Article 25 shall survive the termination of the Client’s relationship with the Bank.
26. Mail Sent by the Bank
26.1 Regularly mailed correspondence shall be deemed to have been delivered when sent to the latest address provided by the Client. Correspondence retained by the Bank in accordance with the “Hold Mail Instructions” form shall also be deemed to have been duly delivered when retained electronically or physically, even though it may not actually be handed over or sent until a later date. The Client therefore assumes full responsibility for any consequences and possible damages that might result from the retaining of the correspondence. The Bank is under no obligation whatsoever to administer the Client’s funds unless the undersigned has given specific instructions to this effect. Correspondence not collected by the Client will be destroyed by the Bank seven (7) years after its date of issue.
26.2 Notwithstanding the foregoing, the Bank hereby reserves the right to communicate directly with the Client if circumstances arise which the Bank determines warrants such action.
27.1 The Client shall have thirty days to make any complaint or objection in writing with respect to the execution or non-execution of instructions of any kind, or to statements of account or any other information provided by the Bank, starting from the date of dispatch of the documents concerned or the date on which they are placed in the Client’s Hold Mail files. If the Client fails to receive advices or notifications which it is expecting, the above period shall commence on the date on which such advices or notifications would normally have been issued by the Bank or placed in the Client’s Hold Mail files. If no complaint or objection is made in writing to the Bank within the above period of thirty days, the transactions carried out by the Bank, as well as its statements of account and other notifications shall be considered to have been approved by the Client. The records of the Bank (whether kept on paper, electronically or otherwise) shall (in the absence of fraud or manifest error) constitute sufficient evidence of the relevant facts and events. Where a statement of account has been expressly or tacitly approved, such approval shall extend to all transactions booked as of the closing date, as well as to any reservations expressed by the Bank.
27.2 The Bank reserves the right to require the Client to sign a document approving the statement of assets in the Client’s account.
28. Force Majeure
28.1 The Bank shall not be responsible for any failure or delay in performing any of its responsibilities to the Client or for any loss or damage arising directly or indirectly in relation thereto where such failure or delay occurs by reason of circumstances beyond the Bank’s control including without limitation, labour difficulties or troubles, mechanical breakdowns, flood, fire, explosion, earthquake or similar catastrophe, acts of god, acts of government or of any regulatory authority or agency or failures of transportation, communication or power supply (each a “Force Majeure Event”). The Bank’s responsibilities to the Client hereunder shall be suspended for so long as the Force Majeure Event continues and the Bank agrees to notify the Client of the commencement or cessation of a Force Majeure Event. The Client or the Bank may terminate their relationship if the Force Majeure Event continues for more than three months after the commencement thereof by written notice to the other party.
29. Consultation of counsel
29.1 The Bank is authorized and empowered, whenever the Bank deems it expedient by reason of any circumstances affecting any of the Client’s accounts or any of the assets therein, to consult counsel and to retain counsel and engage in any action, suit or proceeding affecting such accounts. All fees, costs and expenses so incurred shall be charged against the account but the Bank shall not be under any obligation to defend or engage in any legal proceedings with respect to such account or with respect to any assets therein unless fully indemnified to its satisfaction by the Client.
30. Further assurance
30.1 Each of the Bank and the Client shall execute all deeds or documents (including any power of attorney) and do all such things that may be required from time to time for the purpose of giving effect to the terms of the Agreement and these Terms and the transactions contemplated hereby.
31. Governing Law
31.1 The Agreement and these Terms shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas and the Client hereby submits to the non-exclusive jurisdiction of the courts of the said Commonwealth. The obligation of the Bank to repay any money held by the Bank for the Client is performable at the Bank in The Bahamas. Nothing contained in this clause 32.1 shall limit the right of the Bank to take proceedings against the Client in any other court of competent jurisdiction, nor shall the taking of proceedings in one jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
32. Days Considered Public Holidays
32.1 In all dealings with the Bank, Saturdays, Sundays together with Bahamian public holidays shall be considered to be public holidays.
33.1 The authority of the Bank under these Terms is given by the Client on behalf of its successors in title as well as itself. Accordingly, on the death of a client, these Terms and the Agreement will continue in effect until terminated by the Client’s personal representatives in accordance with clause 23 of these Terms. The Bank may (but prior to any grant of representation, is not bound to) act on the instructions of the Client’s personal representatives.
33.2 If any provision of these Terms is held to be unenforceable or illegal, in whole or in part, such provision or part shall to that extent be deemed not to form part hereof but the enforceability of the remainder of these Terms shall remain unaffected.
33.3 No failure or delay on the part of the Bank in exercising any right, remedy, power or privilege permitted hereunder shall operate in any way as a waiver thereof by such party, regardless of the frequency of such failure or delay.
33.4 These Terms are in addition to and not in derogation of any other written agreement between the Bank and the Client.
33.5 Nothing in these Terms or the Agreement shall be deemed to create a partnership between the parties.
33.6 Nothing in these Terms or the Agreement shall prevent the Bank from providing other services to the Client or to other clients.
34. Electronic Signature (eSignature)
34.1 The Client consents and agrees that the Client’s use of a key pad, mouse or other device to select an item, button, icon or similar act/action while using any electronic service offered by the Bank; or in accessing or making any transactions regarding any document, agreement, acknowledgement, consent, term, disclosure, or condition constitutes the Client’s signature, acceptance and agreement as if actually signed by the Client in writing. Further, the Client agrees that no certification authority or other third party verification is necessary to validate the Client’s electronic signature; and that the lack of such certification or third party verification will not in any way affect the enforceability of the Client’s signature or resulting contract between the Client and the Bank. The Client understands and agrees that the Client’s eSignature executed in conjunction with the electronic submission of the Client’s application will be legally binding and such transaction will be considered authorized by the Client.
34.2 The Client acknowledges and accepts that when he or she accesses and/or makes use of the Bank’s Electronic Channels Services portals or platforms with a Channel User ID, pin, password and/or code, that the Bank will, in the absence of a prior written notification sent to the Bank by the Client no less than 24 hours before the subject transaction is due to take place informing the Bank of any suspicion or knowledge that their account maybe or about to be compromised in any way, view the action of ‘logging in’ as deemed authorization to transact or carry out any instructions given on behalf of the Client or his or her authorized agent thereafter so long as the request does not contravene any law of the Commonwealth of The Bahamas or provision of these General Terms and Conditions or any other supplementary agreement made between the Bank and Client.
Deltec Bank & Trust is a financial services institution serving the unique needs of global private, corporate and institutional clientele. It is the flagship company of Deltec International Group, a diversified independent financial services group, providing a range of private banking and fiduciary expertise.
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