Scope of Terms and Conditions
1.1. These terms and conditions (“Terms”) shall be applicable between you as client and Arie Capital (“ACBM”) as Investment Bank. By using the services referred to in these Terms, you have accepted them. These Terms are legally binding and (subject to amendments of which we will notify you) will apply on the basis set out below to any services and activities which we may carry on with you.
1.2. We may provide certain services to you by means of our extranet, website, online platform or by any other electronic links or systems. The provision of such services shall be subject to these Terms and may be subject to further agreements and terms. These Terms will supplement such agreements to the extent that they do not conflict with such agreements or disclaimers.
1.3. These Terms together with any other agreement, notice, disclaimers, disclosure or other special terms and conditions shall together constitute the terms of business which shall govern the provision by us to you of any regulated or ancillary activity.
1.4. For the purposes of these Terms and Conditions a Business day shall mean the days on which the banks are open in Mauritius and when ACBM correspondents are open.
1.5. ACBM holds an Investment Banking License from the Mauritius Financial Services Commission. As a holder of an investment banking license ACBM may conduct the activities of an investment dealer (full-service dealer, including underwriting), investment adviser (unrestricted), investment adviser (corporate finance advisory), asset management, distribution of financial services and distribution of financial products.
2.1.The services ACBM may provide you are all kinds of financial services, including, without limitation, trading, dealing and distribution services in all kinds of financial products, general investment advisory and investment banking services and arrangement of deals in relation to all kinds of financial products. We may also provide other connected services if so, agreed between you and us.
2.2. You acknowledge that when we provide any services to you, we may require such additional information, documents or other confirmation as we may think fit. You must provide us such additional information or documents within a reasonable time and we may, in our absolute discretion and without having to give you any reason for doing so, refuse to provide services or part of the services.
2.3. You shall be responsible to promptly report any change in your contact details, standing and any legal proceedings that may affect your good standing and the services we provide to you.
2.4. We may do whatever is necessary, desirable or incidental to the provisions of our services.
2.5. You hereby appoint us as your investment bank and authorize us to enter into, on your behalf, such contracts, on such terms, as we, in our discretion, think fit. In particular, we may carry out any transaction with or for you directly or, in our discretion, with or through a broker, intermediary, member of exchange/clearing institution or other third party on such terms as we think fit.
2.6. We may appoint and use any person to be our advisor or agent, on any terms we think appropriate, to assist us in the provisions of services under these terms.
2.7. You shall at all times comply with regulatory requirements and provide us with all relevant information that we require to ensure that at all times you comply with the AML/CFT legal and regulatory framework.
Dealing and Advice
3.1.You may request us orally or in writing, including via our extranet, online platform, website or other electronic link or system, to dispose of or acquire any particular financial product (which request we shall not be obliged to acknowledge or accept). We shall use all reasonable endeavors to carry out your request but shall be under no liability for any loss or expense you incur by reason of any delay or change in market conditions before the transaction is affected.
3.2. You shall be responsible for the safe keeping and secured use of your passwords and the use of your secured access to our platform.
3.3. We may give you generally advice orally or in writing. We need not tell you the basis for the advice. Where we do provide market information, general advice or recommendations, we give no representation, warranty or guarantee to its accuracy or completeness, as to any tax consequences, or as to its suitability for you.
4.1. In consideration of the services that we perform under these Terms, we may charge you a fee, commission or mark-up or a mark-down on transactions effected with you as principal or agent. These and any other charges will be determined by us and advised to you from time to time. Such charges shall be exclusive of any tax or levy, if any.
4.2. Any charges due to us may be deducted from any money held by us on your behalf or, at our discretion, shall be paid by you as stated in the relevant invoice or note.
4.3. We may be entitled to exercise the right of a general lien, set-off or other similar rights, whether by law or otherwise over any of your financial products, money or other property, insofar as there remains any outstanding amounts due from you to us. If you default in paying any amount by the due date, we shall be entitled on such date to pay the credit of, or as the case may be, debit to any account or accounts of yours with us, the equivalent amount thereof in any currency. You shall at all times ensure that you do not hold any debit accounts with us.
4.4. Pending settlement by you, these Terms constitute notice to you that we may deposit financial products purchased for you in a particular transaction as security for any loan or obligation if we received and paid for such financial products on your behalf.
4.5. We may charge for additional costs, fees and disbursements for any advisory fees or legal fees that have been incurred in respect of your account and that we consider were required for purposes of your accounts, transactions and/or in pursuance of any agreements or matters on your behalf and in respect of your accounts or financial products and/or services.
Settlement, Payment and Interest
5.1. We are not obliged to settle transactions or account to you unless and until we have received all necessary documents or funds on account. Where we undertake transactions for you, delivery or payment is entirely at your risk.
5.2.If financial products and/or services are not delivered to us as and when due under any transaction, you will fully indemnify us from and against all liabilities, obligations, losses, damages, penalties, actions, judgments, legal proceedings, costs, expenses and disbursements of any kind or nature whatsoever, including cost of enforcement which may be suffered or incurred by us as a direct or indirect result of such failure. We may acquire insurance to cover any liability of yours to deliver financial products and/or services to us and you will reimburse us for any loss we suffer as a consequence.
5.3.If you fail to pay any sum of money to us on the date on which it is due and payable, you will on demand pay interest on such sum from the date of such failure up to the date of actual payment:
- At rate of Libor+6% per cent per annum;
- Plus 10% of attorney’s commission on any amount due in case the services of such attorney are required for such recovery; and
- Such incidental costs and disbursements for purposes of such recovery.
5.4. Unless otherwise agreed, we will not pay interest on any money held for you, in trust account or otherwise.
Exclusion of Liability
6.1.If we receive and accept your specific instructions, or we reasonably believe that we have sufficient authority from you, we shall have no responsibility of any kind whether in negligence or otherwise by reason or in consequence of our so acting in the circumstances described in the foregoing provisions of this clause.
6.2. We will not be liable to you for any losses, damages, costs and expenses, of any kind, resulting or caused by:
- you are giving orders or instructions under these Terms or otherwise;
- us refusing to act on your orders or instructions;
- your default under the Terms;
- anything lawfully done by us, in accordance with the Terms;
- us complying with any direction, request or requirement of any applicable law or competent authority;
- The misuse of your passwords and secured access to our platform;
- any event or circumstance which we cannot reasonably control.
6.3. In asking us to enter into any financial product transaction with you, or on your behalf, you do so in reliance of your own judgment. In addition, we shall not owe you any duty, save to the extent required by regulators, to exercise judgment on your behalf as to the merits or suitability of the transaction. While any advice given by us or any of our employees, representatives or agents is given in good faith, we shall have no responsibility of any kind whether in negligence or otherwise by reason or in consequence of our so acting in the circumstances.
7.1. Neither we nor you will disclose any confidential information to any other party except as permitted by these Terms, or required by applications laws, regulations or by any competent authority, including any regulatory or enforcement organization.
7.2. Our confidentiality obligations shall not apply where:
- You have defaulted in the performance of your obligations under these Terms or any other agreement with us, whereupon we may disclose to any interested person your name, address and such other information as we deem necessary or as that person reasonably requests;
- Where a counterparty to a transaction into which you are to enter into on your behalf reasonably requests information about you;
- Where we believe it is necessary or desirable in connection with the performance or exercise by us of our duties and/or rights under these Terms;
- To our connected companies, professional advisers or service providers in any jurisdiction;
- To any other person to or through whom we assign or transfer (or potentially transfer or assign) all or any of our rights and obligations pursuant to any of the services or proposed activities provided or to be provided by us; and
- Where the information has previously been publicly disclosed otherwise that as a result of the breach of these Terms.
8.1.Unless otherwise provided in these Terms, you agree that any instructions, notices, requests, disclosures or other communications to be given to you by us or vice versa shall be given in writing, whether by letter, facsimile, email or by other electronic means including any online platform or website and shall be deemed to have received at the times when in the ordinary course of business, they would have been received. We may always send instructions, notices, requests, disclosures or other communications to you at your registered office or principal place of business as applicable.
8.2. You agree that where we determine appropriate, any statements, confirmation or notices required to be sent to you under the rules of a Regulator may be transmitted or provided electronically to us.
In the event of any failure, interruption or delay in performance of our obligations resulting from acts, events or circumstances not reasonably within our control, including but not limited to any acts or regulations of any governmental or supranational bodies or authorities, industrial disputes, breakdown or malfunction of any telecommunications or computer service, we shall not have any responsibility of any kind for any loss or damage thereby incurred or suffered by you.
10.1. Either party may terminate these Terms and any services by way of three months’ written notice to the other at any time. With or without cause such notice period to take effect upon receipt.
10.2. If these Terms are terminated, that will not affect any outstanding orders or transaction or any legal rights or obligations which may already have arisen.
11.1. These Terms are governed by and shall be construed in accordance with the laws of Mauritius.
11.2. Disputes arising out of these Terms shall be subject to the non-exclusive jurisdiction of the courts of Mauritius to which we each submit.
11.3. You may appoint any person specified in writing by you to us as your agent for service of process in Mauritius. Such appointment shall be irrevocable unless and until we give our prior written consent to any revocation.