1. Preamble
These present Terms of Business (‘Terms’) are hereby agreed by and between the client (‘you’ / ‘your’) and CSB Investors (Mauritius) Ltd trading as CSB Investors (‘we’ / ‘us’ / ‘our’), and apply to all of your dealings and/or transactions with or via us, unless otherwise expressly stipulated in distinct separate agreement(s), or as otherwise communicated by us to you from time to time.
These Terms come into force upon execution, by you, of the Application requesting us to provide our Services to you (subject to your acceptance, by us, as our client). These Terms, as updated by us from time to time, apply to all Services set out herein. By becoming our client and using any of our Services, you irrevocably and unconditionally agree and consent to be bound by these Terms, as amended.
2. Services
You hereby appoint us to provide the following Services in respect of the following Instruments, in accordance with, and invariably at all times subject to, these Terms set forth hereinbelow:
a. Investment Services
i. Reception and transmission of orders in relation to one or more financial instruments
ii. Execution of trading orders for you and on your behalf
b. Ancillary Services
i. Custody and administration of your financial instruments, and cash or collateral management
ii. Lending monies and/or securities to you to facilitate margin trading in financial instruments
iii. Cash and forward foreign exchange transactions connected to your use of Investment Services
c. Instruments
i. Listed and OTC transferable securities (equities, ADRs, bonds, and money-market instruments)
ii. Listed futures and options on transferable securities (as above), interest rates, currencies, and equity or other financial indices, settled either in cash or physically as per their specifications
iii. Listed futures and options on commodities, settled either in cash or physically as per their specifications, subject, invariably and at all times, to prevention of any delivery, as set out below
iv. Listed units in collective investment undertakings (ETFs) in permissible markets and asset classes
v. OTC financial contracts for differences (CFDs)
In respect of physically-settled commodity derivatives, and in view of the very substantial operational and default risks involved in taking of making delivery, you hereby irrevocably and unconditionally:
d. acknowledge that our clearing brokers prohibit any such physical deliveries of commodities;
e. agree, promise and undertake to unwind or roll all of your physically-deliverable commodity futures and/or options at least five business days prior to their stipulated last trading day; and
f. acknowledge, agree and affirm that, in the event you fail to unwind or roll your positions timely as stipulated in ii. above, we shall be entitled to do either, in our sole and absolute discretion.
You hereby acknowledge and agree that we may modify or discontinue our Services or any part thereof at any time, that same may be periodically unavailable to allow for systems maintenance and updates, and that we shall not be however liable for any delay, modification or discontinuation of our Services.
3. Agency
By using our Services, you are deemed as expressly, irrevocably and unconditionally agreeing that:
a. in all transactions between us and you, we are acting solely as agent, and not as principal; and
b. where you are acting in the capacity of agent for and on behalf of third parties, you agree that:
i. we shall be acting solely for you, and not for any third party, in any and all transactions;
ii. we shall be acting solely for you whether or not we are or become aware, directly or indirectly, of the identity of any of your own clients or principals, and any such client or principal of yours so identified shall not be treated as an indirect client of ours by us;
iii. in relation to any transaction entered into by you as agent of a third party, you warrant that you have or shall have all due power and authority to enter therein on your client’s or principal’s behalf on these present Terms, and that the transaction, its terms, and these present Terms shall fully bind you and your client or principal accordingly; and
iv. any such principal has, or shall have, at the time the transaction is entered, sufficient resources to meet its obligations thereunder and under these present Terms, and that you shall promptly notify us as soon as you become aware that this is not the case; and
d. we and our agents may in our discretion act in good faith on all matters or instructions believed to be genuine, given or purporting to be given by you or on your behalf verbally, by e-mail, by facsimile, or by any other electronic or physical transmission method, and that we and/or our agents shall not incur any liability by reason of acting, or not acting, on any such instructions.
4. Advice
While we arrange and facilitate transactions in readily realisable securities and derivatives on a daily basis, we and our agents do not provide any legal, tax, regulatory, accounting, investment, financial or other form of advice or recommendation in connection with your account. Accordingly, when using our Services, you hereby expressly, irrevocably and unconditionally acknowledge, agree and affirm that you:
a. shall invariably and at all times obtain and rely on your own independent legal, tax, regulatory, accounting, investment, financial, or any other form of advice from a qualified professional (or assume the risk of not so doing) in relation to any transaction or your use of our Services; and
b. shall be solely and exclusively responsible for your ultimate transactional decisions (and the consequences thereof), and that there can be no guarantee of performance of any product you have executed through us where we may have howsoever assisted you in so doing.
5. Suitability
Where we provide you with Investment Services (with or without any Ancillary Services) for listed transferable securities and/or collective investment undertakings only, we shall do so without assessing the suitability or appropriateness of the Instrument or Service being provided, and accordingly you will not benefit from the corresponding protection afforded by the relevant conduct of business rules.
6. Fees/Costs
Our fees per Service and per Instrument, and any applicable commissions, administrative charges, taxes, duties, levies and other costs or expenses are set out in summary form in our Fee Schedule, as updated from time to time. Further details are available on request. You shall be financially responsible and liable, invariably and at all times, for the payment in full of any and all such brokerage, execution, exchange, custody, administration and/or other fees, commissions, administrative charges (e.g. due diligence and compliance costs), taxes, and/or any other expenses, costs and margins that arise from the use of your account by you or any third parties introduced by you, whether charged directly by us or indirectly by third parties taking part in our provision of the Services or the execution of your orders, including any out-of-pocket or other expenses and all relevant taxes, duties, levies of imposts, and hereby irrevocably and unconditionally agree and undertake to pay all such fees, commissions, margins, charges, taxes, costs or expenses for the Services you receive from us or our agents immediately on demand, without delay, hindrance, demand, protest or any other impediment (save in case of manifest error). Further, you hereby irrevocably and unconditionally authorise us to debit your account promptly with any and all such amounts payable by you hereunder, and acknowledge, agree and affirm that (i) in case you do not howsoever maintain an account with us, or there is no available balance in your account, we shall be entitled to debit any amounts due in a temporary account, at such rate of interest as applicable at the time of such charges, and (ii) in case your account has insufficient cash balance, we shall be entitled to liquidate pro rata any marketable securities therein in our absolute discretion to compensate in full any amounts you owe to us, by giving you two weeks’ prior notice electronically by e-mail or otherwise.
Our Fee Schedule may be amended at any time, and any such amendment shall be notified to you at least one week in advance, but no such amendment shall affect any other Terms of Business herein.
For greater clarity, the foregoing provisions also apply to all expenses incurred by us in connection with (i) replies to inquiries by relevant governmental, judicial, regulatory, fiscal, administrative or other public authorities pursuant to national, international or intergovernmental legal or regulatory requirements, (ii) auditor opinions and reports and certifications or documentation requested or statutorily required, and/or (iii) pursuant to international treaties enshrined in legislation, such as FATCA and CRS reporting.
Any and all administrative or other costs related to claims and transfers of monies or instruments levied by financial, clearing or settlement institutions or fiscal or other authorities in the countries where you trade or have traded shall be yours and yours alone to bear.
7. Enticement
Where permitted by applicable laws and regulations, we may receive or provide remuneration, fees, retrocessions, commissions and/or non-monetary benefits from or to, or share charges with, affiliated, associated or other third parties in connection with Services provided to you and transactions carried out on your behalf. In particular, we may receive or pay retrocessions from or to any relevant broker(s).
8. Indebtedness
Should you become indebted to us for any reason whatsoever, including, but not limited to, the cash settlement of any transaction, the maintenance of requisite margin, or the payment of any fee or other amount due to us, you hereby irrevocably and unconditionally agree and undertake to promptly repay any and all such indebtedness, failing which you hereby irrevocably and unconditionally authorise us, in our absolute discretion, to close all or any of your trading accounts and to settle your indebtedness through your settlement bank, clearing facility, or any accounts held with or introduced to us. Should you settle your indebtedness only partially, you shall remain liable to us for any difference still owed.
9. Settlement
All transactions conducted by you shall be subject to the constitution, by-laws, rulings, regulations and practices of the relevant exchange or other multilateral or bilateral market or trade venue where such transactions are executed, and their transfer, clearing, settlement and paying agents, if any. You hereby irrevocably and unconditionally appoint us as your lawful attorney-in-fact (which appointment is coupled with an interest) to access your settlement account at your depositary bank in your place and stead and for you and on your behalf to settle any transaction(s) made through us, where applicable.
All transactions conducted by you involving payment of price, consideration or premium shall be on a full cash basis. If, upon your purchase or sale of any instrument, we are unable to settle the transaction by reason of your failure to make payment or deliver the instrument(s), you hereby irrevocably and unconditionally agree and undertake to promptly reimburse us for all related costs, losses or liabilities, and authorise us to close any or all of your positions at any time, with or without notice, if we so deem it necessary for our protection, in such manner as we deem appropriate in our absolute discretion. Any margin or foreign currency exchange risk arising from any transaction shall be yours alone to bear.
10. Account
All funds remitted to us for the acquisition or from the disposal of any Instrument(s), or which we hold for your account for any other reason or purpose, shall be held in your name and/or in our name for your account in a bank and/or other financial institution, custodian, broker or investment firm as shall be agreed from time to time with you. By executing the Application, you authorise us or such agent(s) of ours to effectuate any deposits into or withdrawals from any such account on your behalf as required including, without limitation or prejudice to the generality of the foregoing, withdrawals required for settlement of your transactions or payment of any other amounts due by you to us or any other person.
In particular, in our capacity as execution-only broker, we hold client money as trustee in a segregated non-interest-bearing account at an approved financial institution or a segregated client trading account at approved clearing or other brokers. If client money is held in Mauritius, it will be held in accordance with the relevant laws and regulations that may be in force in Mauritius at the time. However, in most cases, client monies and assets will normally only be deposited in a client transaction account outside Mauritius, in the United States, European Union or Singapore. You may notify us in writing that you do not wish your money to be held in any particular regulated jurisdiction. In such circumstances, your money may be held in a client transaction account in another regulated jurisdiction, to which you do not object. Where client money is held in a client transaction account outside Mauritius, it will be held in accordance with the relevant laws and regulations that may be in force in the relevant jurisdiction at the time, and will not be subject to Mauritius financial regulations. In such circumstances, the legal and regulatory regime applicable to the financial institution where such client money is held will be different from that of Mauritius, and in the event of a failure by such financial institution, client money may be treated differently than would be the case if it were held by a financial institution in Mauritius, and such financial institution may reserve the right of set-off or counterclaim against money held in a client transaction account in respect of any sum owed to such financial institution on any other account.
11. Actions
You hereby irrevocably and unconditionally acknowledge and agree that we shall (i) be entitled, absent any specific instructions from you, to take such or no action as we deem appropriate or necessary in relation to any merger, takeover or other offer or corporate action in general, and exercise any rights of conversion, subscription or voting, or any other privileges conferred by any Instrument, and (ii) have no responsibility or liability, whether in negligence or otherwise, by reason or consequence of so doing.
12. Information
If you require trading information or statements to be sent by e-mail, any and all such communications sent to you at the e-mail address provided on your Application shall be considered delivered to you personally at the time of transmission thereof, whether or not actually received and read by you. If you do not notify us in writing of any errors or objections to any trading information or statement(s) within seven days of the date of delivery to you of a statement in digital form by e-mail or online (or fourteen days of the date of mailing to you of a physical printed statement), you shall be deemed as agreeing that the information thereon has been accepted as correct by you, notwithstanding that specific acknowledgment or acceptance is requested by us from you but none is given, and we shall be released from any and all claims in connection with any such information or any action taken or not taken by us regarding your account. Trading confirmations forwarded by us, or any other transcripts from us, require no signature. Verbal trade confirmations may be subject to final written confirmation.
If you do not require trade confirmations to be e-mailed to you, it shall be wholly incumbent on you to confirm trade details online or on one of our recorded trading telephone lines, or otherwise by meeting with us regularly to satisfy yourself fully and entirely that your instructions have been followed in full, and you hereby irrevocably and unconditionally agree to hold us and our agents, affiliates, directors, officers and employees harmless from any claim, demand or damage arising from your failure to do so.
If you receive execution reports and statements directly from your online trading platform, rather than from our operations department (‘back office’), you hereby expressly acknowledge and accept that we may be working with third-party software and hardware and shall not send you any trade confirmation or statement as these shall be provided to you by your own trading platform, and that it shall be wholly incumbent on you to confirm the validity and correctness of the trading platform information provided to you, and you also hereby irrevocably and unconditionally agree to hold us and our agents, affiliates, directors, officers and employees harmless from any claim, demand or damage arising therefrom. Whilst we shall endeavour to provide information, execution reports and statements to your trading platform at your request by liaising with the platform and software suppliers, and shall generally actively support and assist you in good faith to resolve any issues with executions and statements on your online trading platform, we hereby expressly disclaim any liability arising from any incompatibility or technical issue.
13. Notification
You are legally obligated to notify us of any change in information relevant to your business relationship with us and/or the Services we provide to you and, until such time as you do so, we shall be entitled to rely on any and all information previously provided by you to us, and continue to assume that it is correct for the purposes of acting for you, and that it continues to govern the relationship between us. In particular, without limitation, you are legally obligated to notify us promptly in writing of any change of name, residential address, tax domicile or contact details, failing which, any notice to you can, with binding effect, be forwarded to one of the physical and/or e-mail addresses stated on your Application.
14. Liability
You hereby irrevocably and unconditionally acknowledge, agree and affirm that we shall not be liable howsoever for any (i) loss or damage whatsoever, howsoever caused, whether directly or indirectly, by government restrictions, exchange or market rulings, suspensions of trading, wars, strikes, terrorist acts, or any other event, fact or occurrence beyond our or our agents’ control, or (ii) penalties, fines, actions, brokerage, or other external administrative liabilities incurred by you in relation to our Services to you.
You further hereby irrevocably and unconditionally acknowledge, agree and affirm that we shall not be liable for any (i) loss of opportunity by dint of which the value of any Instrument would have been able to increase, or decrease of any such value, howsoever caused, or (ii) loss caused by misrepresentation of facts or error of judgment or any act done or omitted to be done by us, save insofar as same was caused by our or any of our directors’, officers’, employees’, or representatives’ wilful default or fraud.
15. Indemnity
Save for our or any of our officers’ or employees’ gross negligence, wilful default or fraud, you hereby irrevocably and unconditionally agree and undertake to indemnify and keep us and our agents, directors, officers and employees harmless and free from any claims by any third parties and from any liability, loss, cost or expense we may incur as a result of our provision of our Services to you or of any act or omission by you or any of your authorised representatives or attorneys acting for you or on your behalf.
16. Warranties
In connection with your acceptance of the Services offered by us to you, you represent and warrant that (i) you possess the legal authority to enter into a legal relation with us and execute the Application and all other pertinent documents in order to use our Services in accordance with these present Terms, (ii) all information provided by you in the Application, and any further information you may provide to us in relation to your account is true and correct, and (iii) you have read and understood the contents of all of the documentation provided to you by us and, in particular, these Terms and our various Notices.
17. Security
You are entirely responsible for the confidentiality and security of any account identification references provided to you, and hereby expressly agree and undertake to notify us promptly of any unauthorised use of your account or any other breach of security.
18. Complaints
If, for any reason, you are not satisfied with the Services rendered to you, you should first attempt to resolve the issue directly with the employee(s) involved. If the issue is not resolved to your satisfaction, you should thereafter contact our Compliance Department, which shall investigate and revert in writing.
19. Amendments
These present Terms may be amended unilaterally by us at any time, and any such amendment shall become effective and binding on you promptly upon notification thereof by us to you. Reasons for the amendment of these Terms include subsequent changes in our business model, policies or procedures, and changes to any applicable laws or regulations in Mauritius or abroad affecting our legal relationship.
20. Laws
All transactions conducted by you shall be subject invariably and at all times to the laws and regulations governing the constitution, operation, rules, regulations, policies, procedures, orders, circulars and/or practices of the relevant exchange or other multilateral or bilateral market or trade venue where such transactions are executed, as amended or altered from time to time. You hereby expressly, irrevocably and unconditionally acknowledge, agree and affirm that we shall be entitled to take, or abstain from taking, any actions or measures necessary for us to comply with any and all such rules, regulations, policies, procedures, orders, circulars and/or practices in force from time to time, and that any such actions or measures taken by us, and all such rules, regulations, policies, procedures, orders, circulars and/or practices in force or applicable at any time shall be invariably and at all times binding upon you.