(a) In this addendum, the following words shall have the following meaning:
“Account” means one or more accounts opened by the Custodian in its books in respect of the Client\'s Funds and Securities.
“Agent” means a subsidiary, an associated company, a branch or office of the Custodian, any agent of the Custodian as well as entities and clearing systems described in clause 3.(b).
“Custodian” means the IF.
“Custody Addendum” means this addendum as this may, from time to time be varied, amended or replaced by mutual agreement in writing.
“Directive DI87-01” means the Directive DI87-01 of the Cyprus Securities and Exchange Commission for the Safeguarding of Client Assets, Product Governance Obligations and Inducements.
“Financial Instruments” means the Financial Instruments as these are defined in the Terms and Conditions Agreement.
“Funds” means money or cash funds of any sort and in any currency.
“Terms and Conditions Agreement” means the Terms and Conditions Agreement found on the Company’s website, which includes inter alia its integral parts as the Investment Service Agreement, Portfolio Management Addendum, Custody Addendum, relevant appendixes and Schedules.
“Proper Instructions” means the instructions as per clause 7 below.
“Qualifying Money Market Fund” means a collective investment undertaking authorised under Directive 2009/65/EC, on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), or which is subject to supervision and, if applicable, authorised by an authority under the national law of the authorising Member State, and which satisfies all the following conditions:
(a) its primary investment objective must be to maintain the net asset value of the undertaking either constant at par (net of earnings), or at the value of the investors\' initial capital plus earnings;
(b) it must, with a view to achieving that primary investment objective, invest exclusively in high quality money market instruments with a maturity or residual maturity of no more than 397 days, or regular yield adjustments consistent with such a maturity, and with a weighted average maturity of 60 days. It may also achieve this objective by investing on an ancillary basis in deposits with credit institutions; (c) it must provide liquidity through same day or next day settlement.
For the purposes of point (b), a money market instrument shall be considered to be of high quality if the management/ investment company performs its own documented assessment of the credit quality of money market instruments that allows it to consider a money market instrument as high quality. Where one or more credit rating agencies registered and supervised by European Securities and Markets Authority have provided a rating of the instrument, the management/investment company\'s internal assessment should have regard to, inter alia, those credit rating.
“Safekeeping Services” means safekeeping and administration of financial instruments for the account of clients, including custodianship and related services such as cash/collateral management and excluding maintaining securities accounts at the top tier level (“central maintenance service”), as referred to in point 2 of Section A of the Annex to Regulation (EU) No 909/2014.
“Schedule” means a schedule of the Custody Addendum as such may, from time to time, be varied, amended, replaced or expanded by mutual agreement.
"Security" or "Securities" shall mean any Financial Instruments that shall be subject to the Safekeeping Services as these may, from time to time, be varied.
“Securities Financing Transactions” means the transactions defined as such in Article 3 point (11) of Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse.
“Sub-Custodian” means any person appointed by the Custodian to hold Funds and or Securities on its behalf.
(b) Subject as provided in clause 1.1 capitalised terms used in this Custody Addendum shall bear the meaning attributed to them in the Terms and Conditions Agreement unless otherwise specifically stated in this Custody Addendum.
(c) In this Custody Addendum the headings of the clauses shall be used solely for ease of reference and shall not be construed as part of this Custody Addendum.
(d) Save where the context otherwise provides, the neuter gender shall include the masculine and the female gender and vice versa.
(e) Reference to any agreement (including without limitation, this Custody Addendum) or to any other document, shall be deemed to include references to them as these may from time to time be amended, renewed or replaced and to all agreements and documents which are declared to be supplementary to them or are attached thereto.
The Client hereby appoints, for the term and subject to the provisions of this Custody Addendum, the Custodian of the Securities and Funds, now owned or to be acquired by the Client to perform the duties of Custodian as set forth herein, and the Custodian hereby confirms its acceptance of such appointment and of the attendant responsibilities.
3. Holding of assets of the Client
(a) All Securities, owned by the Client are to be held by or to the order of the Custodian, and the Custodian shall keep all such assets under its custody and or the custody of a Sub-Custodian, subject to the provisions of this Custody Addendum. The Client shall take care and be responsible for delivering to the Custodian, or to any Sub-Custodian and or to its Agents for the keeping under its custody any documents of title evidencing proper and valid title, interest participation or claim of the Client in or against an issuer.
(b) While remaining responsible as provided in clause 5 below, the Custodian may under its responsibility entrust certain assets of the Client to other persons throughout the world acting as nominees, agents or correspondents of the Custodian including clearing systems [like CLEARSTREAM and EUROCLEAR].
Such assets shall be held to the order of the Custodian for the benefit of the Client and only the Custodian, upon receipt of Proper Instructions may dispose Client assets deposited in its own depositary or with Agents.
(c) Where the Custodian is holding Securities belonging to the Client, he shall make adequate arrangements so as to safeguard the Client’s ownership rights and in particular for the eventuality of the Custodian’s insolvency as provided in clause 4 below. Furthermore, the Custodian shall prevent the use of the Client’s the Securities on own account except with the Client\'s express consent.
(d) Where the Custodian is holding Funds belonging to the Client, he shall make adequate arrangements to safeguard the Client\'s rights and prevent the use of the Client’s funds for its own account as provided in clause 4 below.
4. Powers and duties of the Custodian
(a) The Custodian shall open and maintain the Account in its books separately designated in the Client\'s name (or as the Client may direct) for the purpose of recording the Client\'s holding of and entitlement to any Funds and Securities held on behalf of the Client and shall follow the Client\'s Proper Instructions to settle transactions entered into by the Client in respect of Securities, using the Account, in accordance with this Custody Addendum.
(b) In relation to the safekeeping of Securities and Funds the Parties agree the following:
(i) The Custodian shall be responsible for the safekeeping of the Client\'s Securities and any Funds in accordance with this Custody Addendum. The Custodian will use reasonable standard of care with respect to the safekeeping of Funds and Securities held on the Client\'s behalf, and collections of Funds or other property paid or distributed in respect of such Funds and Securities.
(ii) The Custodian shall receive and hold the Securities delivered to it by the Client or on behalf of the Client. Unless agreed otherwise Securities (other than those in bearer form) will be registered in the name of the Custodian or any Sub-Custodian or of an Agent or in such other name as may be customary in the country or countries of the relevant Securities (which may include the Client, in which case clause 3(b) second paragraph above shall apply to the effect that only the Custodian may dispose of Client assets so registered). Bearer Securities shall be deposited in the vault of the Custodian, the Sub-Custodian or of an Agent separately from any documents of title in bearer form that belong to the Custodian, the Sub-Custodian or the Agent and or other clients of the Custodian, the Sub-Custodian and the Agent (as applicable) or otherwise dealt with as is appropriate for the purpose of providing for the safekeeping thereof and where Securities in bearer form are to be held by a Sub-Custodian or an Agent, the Custodian shall procure that the Client’s bearer Securities are to be held separately from any documents of title in bearer form that belong to such persons and other clients of such persons.
(iii) The Custodian shall:
(1) keep records and accounts so as to be able at any time and without delay to distinguish assets held for the Client from assets held for any other client, as well as from the Custodian’s own assets;
(2) maintain its records and accounts in a way that is compliant with the requirements of the Law and the Directive DI87-01;
(3) conduct, on a regular basis, reconciliations between its internal accounts and records and those of any third parties by whom the Securities and or Funds of the Client will be held;
(4) take the necessary steps to ensure that any Securities of the Client deposited with a third party, in accordance with clause 4(c), are identifiable separately from the financial instruments belonging to the Custodian and from financial instruments belonging to that third party, by means of differently titled accounts on the books of the third party or by other equivalent measures that achieve the same level of protection;
(5) take the necessary steps to ensure that the Client’s Funds deposited, in accordance with clause 4(d), in a central bank, a credit institution or a bank authorised in a third country or a Qualifying Money Market Fund are held in an account or accounts identified separately from any accounts used to hold funds belonging to the Custodian;
(6) introduce adequate organisational arrangements in order to minimise the risk of the loss or diminution of the Client’s Securities or Funds, or of rights in connection with those assets, as a result of misuse of the assets, fraud, poor administration, inadequate record-keeping or negligence.
(iv) If, for reasons related to the applicable law, including in particular the law relating to property or insolvency, the Custodian cannot comply with the requirements of paragraph (iii) of clause 4(b) for the safeguarding of Clients\' rights, then the Custodian shall put in place arrangements to ensure that the Client\'s Securities and Funds are safeguarded, in order to meet the objectives of paragraph (iii) of clause 4(b).
(v) If the applicable law of the jurisdiction in which the Client’s Funds or Securities are held, prevents the Custodian from complying with points 4 or 5 of paragraph (iii) of clause 4(b), the Custodian shall comply with any requirements with equivalent effect in terms of safeguarding clients\' rights issued by CySEC. The Custodian when relying on such equivalent requirements, shall inform the Client that in such instances the Client shall do not benefit from the provisions envisaged under the Law and the Directive DI87-01.
(c) In relation to the depositing of Securities the Parties agree the following:
(i) The Custodian may deposit Securities held by the Custodian on behalf of the Client into an account or accounts opened with a third party provided that the Custodian exercises all due skill, care and diligence in the selection, appointment and periodic review of the third party and of the arrangements for the holding and safekeeping of the Client’s Securities so deposited.
(ii) The Custodian may deposit the Client’s Securities with a third party, only where the third party is established in a jurisdiction where the safekeeping of financial instruments for the account of another person is subject to specific regulation and supervision and that third party is subject to this specific regulation and supervision.
(iii) The Custodian shall not be allowed to deposit Securities held on behalf of the Client with a third party established in a third country that does not regulate the holding and safekeeping of financial instruments for the account of another person, unless the nature of the Securities or of the investment services connected with those instruments requires them to be deposited with a third party established in that third country. The prohibition provided herein shall not be applicable where the Client has been classified as a professional client and the Client has requested the Custodian in writing the deposit of the Securities with a third party in that third country.
(d) In relation to the depositing of Funds the Parties agree the following:
(i) The Custodian must, upon receiving any Funds, promptly place the Funds into one or more accounts opened with any of the following:
(1) central bank;
(2) credit institution as defined in section 2(1) of the Business of Credit Institutions Law;
(3) bank authorised in a third country;
(4) Qualifying Money Market Fund.
(ii) Where the Custodian will not deposit the Client’s Funds client with a central bank, the Custodian shall exercise all due skill, care and diligence in the selection, appointment and periodic review of the credit institution, bank or money market fund where the Funds are placed and the arrangements for the holding of the Funds and take into consideration the need for diversification of these funds as part of the required due diligence.
(iii) The Custodian shall not be allowed to deposit more than 20% of all Client’s Funds with a credit institution, bank or Qualifying Money Market Fund of the same group as the Custodian or combination of any such group entities. By way of exception the Custodian shall not be obliged to abide to this limitation where it is able to demonstrate that, in view of the nature, scale and complexity of its business, and also the safety offered by the third parties referred to above and including in any case the small balance of the Client’s Funds held by the Custodian, the limitation is not proportionate.
(e) In relation to the use of Securities, the Parties agree as follows:
(i) The Custodian shall not be allowed to enter into arrangements for Securities Financing Transactions in respect of Securities held by the Custodian on behalf of the Client, or otherwise use any Securities for its own account or the account of any other person or client of the Custodian unless the Client gives express prior consent to such arrangements and the Custodian complies with the specified terms to which the Client consents.
(ii) The Custodian shall not be allowed to enter into arrangements for Securities Financing Transactions in respect of Securities held on behalf of the Client in an omnibus account maintained by a third party or otherwise use any Securities held in such an account for its own account or the account of any other person unless the Client gives express prior consent to such arrangements and the Custodian complies with the specified terms to which the Client consents.
(iii) The Custodian shall adopt specific arrangements for all clients to ensure that the borrower of any of the Client’s Securities provides an appropriate collateral and the Custodian shall be under the obligation to monitor the continued appropriateness of such collateral and to take the necessary steps to maintain the balance with the value of the Client’s Securities.
(f) In relation to Title Transfer Financial Collateral Arrangements the Parties agree as follows:
(i) Where the Client has been classified as a retail client, the Custodian shall not conclude the Title Transfer Financial Collateral Arrangements with the Client for the purpose of securing or covering present or future, actual or contingent or prospective obligations of the Client.
(ii) Where the Client has been classified as a professional client or an eligible counterparty the Custodian may conclude the Title Transfer Financial Collateral Arrangements with the Client. Where the Custodian intends to conclude the Title Transfer Financial Collateral Arrangements with the Client for the purpose of securing or covering present or future, actual or contingent or prospective obligations of the Client, the Custodian shall inform the Client of the risks involved and the effect of any Title Transfer Financial Collateral Arrangement.
(g) Provided that the Custodian complies with his duties of supervision and control as are prescribed herein and by the Law and the Directive DI87-01, the Custodian may, for any transactions hereunder, entrust these without limitation, to an Agent or a Sub-Custodian provided that such persons, if any, shall be of sound reputation and good standing and the Custodian will exercise reasonable care in the selection thereof;
(h) The Custodian shall have the duty, in order to comply with its regulatory and contractual obligations and in order to protect successfully the Client’s rights and to prevent the use of the Client’s Securities and Funds for its own account or for the account of other clients, to educate and train persons duly approved by the CySEC, so that they can properly and effectively operate the administrative and accounting organization that the Custodian possesses, that provides for these issues and apply the control and security mechanisms, as especially mentioned in the Custodian’s Internal Regulation (“Compliance Manual”).
(i) The approved persons shall have the duty to:
(i) inform the Client about the Securities and Funds and Custodian’s procedures of safe-custody and management, in the course of provision of the custody service; and (ii) provide the Client with any information that is necessary for the exercise of his rights over the Securities and Funds that the Custodian keeps in safe-custody, as well as the ambit of the services that the Custodian undertakes to provide the Client with.
(j) Subject as provided in clause 3(a) and clause 3(d) above, the Custodian shall hold and shall procure that any Agent or Sub-Custodian it may appoint, shall receive and hold to the order of the Custodian all monies paid to the Client, subject to withdrawal upon Proper Instructions on the request of the Client or of any person duly authorised to give Proper Instructions on behalf of the Client;
(k) Upon receipt of Proper Instructions and insofar as monies are available, the Custodian shall, if and where applicable, make or cause to be made payment out of the monies of the Client including, without limitation, in the following circumstances:
(i) in connection with the acquisition of Securities or other permitted assets;
(ii) in connection with forward transactions and/or financial futures or other investment and hedging practices΄
(iii) for the payment of dividends and other distributions to shareholders;
(iv) for payment of bills, statements, taxes, managements fees, custodian fees or other obligations of the Client; or
(v) in the event the Custodian undertakes to collect dividends, exercise rights deriving from options or voting rights, the renewal or exchange of security titles or other relevant services for the benefit of the Client it shall have the duty to determine with clarity the extent and the content of the provided services as well as its fee for such provision.
(l) Upon receipt of Proper Instructions, the Custodian shall transfer, exchange or deliver Securities, or shall generate a transfer, exchange or delivery of any Securities to be made for the account of the Client including, without limitation, in the following circumstances:
(i) in connection with the sale of any such Securities, if practicable and subject to customary market practices, involving the transfer of any Securities, upon receipt of payment by the Custodian;
(ii) upon conversion, redemption or exchange of any such Securities or assets for any reason other than sale into or for other Securities or cash;
(iii) for the purpose of exercising any right whatsoever with respect to such Securities; or
(iv) to the succeeding custodian upon termination of this Custody Addendum.
Subject to the provisions above, instructions for the withdrawal of Securities free of payment shall be sent to the Custodian only in writing, fully explaining the reasons for such free delivery, manually signed by a person authorised to give Proper Instructions or by electronic means with the appropriate test keys, as may be agreed from time to time;
(m) Subject to the terms hereof, unless the Custodian receives contrary written instructions from the Client, the Custodian shall and will procure that its Agents and Sub-Custodians shall, and any such person shall be authorised:
(i) to receive and to collect promptly all cash and other amounts of interest, dividends, proceeds from transfer and other payments in respect of Securities;
(ii) to credit and, if appropriate, subject to any applicable currency controls, laws and regulations, repatriate cash receipts timely to the appropriate account of the Client maintained at the Custodian (or to such other account at such location as the Client shall from time to time designate in writing, such account however to be opened and maintained under the supervision and control of the Custodian). If the Custodian arranges for a cash account to be credited with such payments in advance of receipt, the Custodian shall be entitled (without prejudice to the duties hereunder) to debit the cash account forthwith with any such amounts so credited upon oral or written notification if neither the Custodian nor any Sub-Custodian or any Agent can collect such amount in the ordinary course of business;
(iii) to exchange certificated securities where the exchange is purely administrative (including, without limitation, the exchange of temporary certificated securities for those in definitive form and the exchange of warrants or other documents of entitlement to securities for the Securities themselves);
(iv) to surrender Securities at maturity or when called for redemption upon receiving payment therefore;
(v) whenever notification of a rights entitlement or a fractional interest resulting from a rights issued, stock dividend or stock split is received for the Client and such rights entitlement or fractional interest bears an expiration date, the Custodian will endeavour to obtain the Client\'s instructions (as the case may be) but should these not be received in time for the Custodian to take timely action, the Custodian is authorised to sell such rights entitlement or fractional interest and to credit the Client\'s cash account with the proceeds;
(vi) to execute in the Client\'s name, whenever the Custodian deems it appropriate, such ownership and other certificates as may be required to obtain the payment of income from the Securities;
(vii) to reconcile or cause any Sub-Custodians or any of its Agents to reconcile the assets held by the Custodian on behalf of the Client on an annual basis or as may be required for purposes of compliance with the Law or the Directive DI87-01;
(viii) to insure certificated Securities in transit to or from a Sub-Custodian or an Agent against theft, embezzlement, loss or mysterious disappearance in such amounts and with such responsible insurers as is customary;
(ix) to accept and rely upon all Proper Instructions given on behalf of the Client permitted by this paragraph including, without limitation instructions to sell, assign, transfer or deliver, or to purchase for the account of the Client any Securities;
(x) on the reasonable request of the Client, to make such applications for reclamations of withholding taxes in the jurisdictions in which the Client invests, as are available.
(n) The Custodian shall forward to the Client or any Representative or Attorney designated by the Client only such communications relating to Securities and any Funds held in the Account as call for voting or the exercise of rights or other specific actions (including proxy forms and material relating to legal proceedings to be transmitted to security holders) to the extent that sufficient copies are received by the Custodian in time for forwarding to the Client and otherwise only on a reasonable efforts basis.
(o) The Custodian agrees that the Client\'s independent accountant or any representative of an appropriate regulatory body shall be entitled to examine, on the premises of the Custodian, and upon giving the Custodian reasonable advance notice, the Custodian\'s records and tax receipts relating to the Securities held in the Account and to report findings to the Client, but only upon furnishing the Custodian with written instructions from the Client requesting such examination. The Custodian also agrees to procure that any Sub-Custodian or any of its Agents will agree to grant similar examination rights and that it will not appoint any Sub-Custodian or any Agent unless such undertaking is given by it.
(p) In case that the Client’s accounts containing Securities are kept in a Central Register, Central Securities Depository or other Depository, the Custodian shall have the duty to inform the Client at least about the following issues:
(i) whether the Client’s accounts are kept on a specific basis, or in an omnibus account;
(ii) about the nature of the Client’s rights over the Securities;
(iii) about the procedures of the keeping and updating these accounts and, especially those that ensure that:
(1) every entry in the Client’s Accounts containing Securities in the records of the Custodian corresponds to an order given by the Client;
(2) any movements in the Client’s accounts containing Securities that the Custodian is keeping, correspond to the accounts of the Custodian in a Central Depository (Central Register), when omnibus accounts are kept for the Custodian clients;
(3) about any danger the Client may incur in case of default of the Custodian or the Central Depository.
(q) The Custodian shall have the duty to inform the Client about:
(i) who bears the risk in case of insolvency of any third party such as a credit institution, an investment firm (registered investment firm), a Central Depository (Central Register) etc, which has in its possession the Securities belonging to the Client or the Securities in the name of Custodian which belong beneficially to the Client, or in general, the risk of the loss of the Securities of the Client that the third party has in its possession;
(ii) whether the Client is covered by the investor compensation Scheme or any insurance scheme regarding the Securities that are according to the aforementioned in the possession of a third party and to which extent such coverage exists.
(r) In connection with making deposits of cash with such credit institutions as shall be agreed from time to time between the Client and the Custodian (whether or not instruments representing such deposits are to be issued and delivered to the Custodian), the Custodian shall maintain with respect to such assets appropriate records as to the amounts of each such time deposit with each such credit institution and the maturity date and interest rate relating to each such time deposit.
(s) The Custodian will moreover, to the extent and as long as required by the Law:
(i) ensure that the sale, issue, redemption and cancellation of shares effected on behalf of the Client or by the Client are carried out in accordance with the law and the memorandum and articles of association of the Client;
(ii) ensure that in transactions involving the Securities belonging to the Client the consideration is remitted within the usual time limits;
(iii) ensure that the income of the Client is applied in accordance with the memorandum and articles of association.
(t) The Custodian shall have the duty to inform directly and by any appropriate means the Client about every movement in his accounts containing the Securities, which the Custodian has in its possession and to send to the Client on regular time intervals and at least once every three months a detailed report detailing the transactions made in the accounts.
(u) The Custodian shall comply with any operating procedures agreed from time to time between the parties.
(v) The Custodian shall comply with all applicable laws relating to the provision of the Safekeeping Services hereunder and shall hold necessary consents and licenses in order to carry on its contractual obligations and provide its services hereunder. To the extent within its reasonable competence and power the Custodian shall further procure that any Sub-Custodian or any of its Agents hereof and to the extent within the Custodian\'s reasonable competence and power to verify that any Sub-Custodian or any of its Agents hold all necessary consents and licenses in order to carry out their obligations and provide services in the context hereof. The Custodian will at all times ensure that in case any Sub-Custodian or any of its Agents loses any required licenses, the Custodian will promptly require such any Sub-Custodian or Agent to re-apply for those licenses and if those licenses are not re-instated within a reasonable period of time, the Custodian will terminate the Sub-Custodian’s or Agent\'s contract.
5. Liability of the Custodian
(a) The Custodian shall not be liable in the performance of its duties hereunder except for fraud, or wilful misconduct.
(b) The Custodian\'s liability shall not, to the extent permitted by the Law and the Directive DI87-01, be affected by the fact that it has entrusted all or some of the Securities to Sub-Custodian or other third party or third parties.
(c) The Custodian shall not be liable in cases of force majeure.
(d) Provided that the Custodian has complied with its obligations under this Custody Addendum, the Custodian shall not be liable for the execution of instructions, which the Custodian shall have accepted in good faith as being Proper Instructions given by or on behalf of the Client.
(e) Provided that the Custodian any Sub-Custodian and any of its Agents act in good faith and with the exercise of reasonable care in performance of such duties as would ordinarily be expected of a financial institution in the relevant market and subject to the terms of this Custody Addendum, the Custodian is not liable for defects of title or entitlements to assets pre-existing at a time when such assets become subject to its custody or control.
6. Rights of the Custodian
The Custodian shall have the following rights:
(a) To receive Advice
If the Custodian shall at any time be in doubt as to any action to be or not to be taken by it, it may, with the prior consent of such person or persons as shall from time to time be designated by the Client, obtain advice at the expense of the Client and may, but shall not be required to, act thereon.
(b) To institute legal proceedings
The Custodian shall not be required to take any legal action hereunder unless fully indemnified to its reasonable satisfaction for costs and liabilities, and if the Client requires the Custodian in any capacity to take any legal action, which in the opinion of the Custodian might render the Custodian liable, by virtue of its capacity as custodian, for the payment of money or liable in any way, the Custodian shall be kept indemnified in any reasonable amount and form satisfactory to it as a prerequisite to taking such action.
(c) To be indemnified
Subject always to clause 5 above, the Client agrees to indemnify and hold harmless the Custodian and its employees, officers and directors from any cost, liability, expense and loss which may be suffered or incurred by the Custodian or any such person by reason of the Custodian\'s proper performance of its obligations or duties hereunder other than due to failure to exercise care in the performance of the Custodian\'s duties hereunder and other than tax on the Custodian\'s overall income or profits and other than costs, liabilities, expenses and losses incurred by the Custodian as a result of its fraud, or wilful misconduct.
(d) To be reimbursed
The Custodian shall be entitled to receive from the Client on demand reimbursement for its disbursements properly incurred hereunder on production of adequate evidence of expenditures. If the Client requires the Custodian to advance Cash or Securities for any purpose which the Custodian shall be at liberty, however not under a duty, to advance, any property at any time held for the account of the Client shall be security therefore and should the Client fail to repay the Custodian promptly, the Custodian shall be entitled to utilize available cash and to dispose of the Client\'s assets to the extent necessary to obtain reimbursement thereof, either by way of set-off and/or realization of the Custodian’s lien on assets.
(e) To use data processing records
The Custodian is authorised (so far as is permitted by applicable laws) to maintain all accounts, registers, corporate books and other documents on computer records and to produce at any time during the course of legal proceedings, copies of reproductions of these documents made by photographic, photo static or data processing procedures as judicial proof.
7. Proper Instructions
“Proper Instructions” shall be deemed to have been received by the Custodian in respect of any matters referred to in this Custody Addendum upon receipt of written, cabled, electronic or telefax instructions given by or on behalf of the Client or by one or more person or persons as the Client shall from time to time have authorised to give the particular class of instructions in question and which the Custodian has agreed to so accept. Where the Client is a legal entity, a certified copy of a resolution of the board of directors of the Client may be received and accepted by the Custodian as conclusive evidence of the authority of any such person or persons to act and may be considered as in full force and effect until receipt by the Custodian of written notice to the contrary. The Custodian shall not be liable for the execution of instructions which the Custodian will have accepted in good faith as being Proper Instructions and the Custodian shall act upon receipt of Proper Instructions provided these are in accordance with the Articles of Association and all applicable laws.
Without prejudice to any provisions relevant to fees and expenses in the Terms and Conditions Agreement, Parties hereby agree the following specific terms to be applicable to this Custody Addendum: The Client shall pay to the Custodian by way of remuneration for its services hereunder a custodian fee as described in Schedule 1 and in paragraph 6 of the Investment Service Agreement. Schedule 1 may be amended at any time during the duration of this Custody Addendum by the Custodian and any such action does not affect any other terms of this Custody Addendum. Fees and expenses of delegates and any Sub-Custodian or any Agents of the Custodian will be paid on a basis to be agreed from time to time in writing by the parties.
(a) Except where this is required by the applicable law in a third country jurisdiction in which the Client’s Funds or Securities are held, the Custodian shall not permit the creation of any security interest, lien or right of set-off over the Client’s Securities or Funds which enable third parties to dispose of the Client\'s Securities or Funds in order to recover debts that do not relate to the Client or provision of services to the Client.
(b) Without prejudice to the obligations of the Custodian in clause 9(a), when entering into agreements that create such security interests, liens or rights of set-off, the Custodian shall be obliged to disclose that information the Client and to indicate the risks associated with such arrangements.
(c) Where security interests, liens or rights of set-off are granted by the Custodian over any Security or Funds of the Client, or where the Custodian has been informed that they are granted, then these must be recorded as such in Schedule 2 to this Custody Addendum and in addition they shall be recorded to the Custodians’ own accounts in order to make the ownership status of the client’s assets clear, such as in the event of an insolvency.
(d) It is provided that in the whole duration of this Custody Addendum and as long as there are any acts outstanding, that are based on, or are in relation to this Custody Addendum, and until the full repayment of all amounts owed to the Custodian by the Client, the Custodian shall have in priority against any third party, a general preferential lien on all and every amount of money, Fund, Security, as well as on any assets of any nature belonging to the Client, which at any time may come into the possession, custody or control of the Custodian. These assets shall be held as an assurance or guaranty for any money payable and/or liabilities which are owed today or it is possible that they will be owed in the future from the Client to the Custodian in any form.
10. Duration and Termination
(a) Unless otherwise agreed between the Parties in writing, the duration of this Custody Addendum shall be the duration of the Terms and Conditions Agreement and any invalidity or termination by the parties or otherwise, of the Terms and Conditions Agreement, shall have the same automatic effect on the duration and or effect of this Custody Addendum.
(b) Without prejudice to the applicable provisions of the Terms and Conditions Agreement and to the extent not in conflict with such rules, the following shall apply with regard to the termination Custody Addendum:
(i) The Parties shall be entitled to terminate the Custody Addendum at any time by giving to the other Party a thirty (30) days written notice. Termination under this clause 10.b.i. shall not prejudice the validity of the Terms and Conditions Agreement which shall remain in force until terminated pursuant to its terms.
(ii) The Custodian may terminate this Custody Addendum immediately without giving notice in case of:
(1) death of the Client;
(2) in case the Client comes into an agreement or arrangement with its creditors;
(3) the Client being guilty of malicious conduct or gross negligence or fraud or of using fraudulent means in relation to the execution of this Custody Addendum;
(4) failure or refusal of the Client to fulfil or comply fully with any of its obligations under the Custody Addendum;
(5) failure to provide the Custodian with any information or documentation for the purposes of compliance of the Custodian with its obligations pursuant to the Law and any other applicable laws, including but not limited to legislation applicable in relation to prevention and suppression of money laundering and terrorist financing;
(6) the Custodian has suspicion of money laundering and terrorist financing;
(7) if so required by any competent authority;
(8) if the Client comes, whether directly or indirectly, the subject to sanctions and or restrictive measures issued by the European Union and or any other jurisdiction and or international organisation and or body;
(9) if so required by any law or applicable legislation and or if this is necessary in order for the IF to comply with its obligations under any law or regulatory requirement.
Termination under this clause 10(b)(ii) shall not prejudice the validity of the Terms and Conditions Agreement which shall remain in force until terminated pursuant to its terms.
(iii) It is further provided that in case of termination of the Custody Addendum, any lawful rights or obligations which have arisen during or before the termination of the Custody Addendum shall not be affected and the Client shall be obliged to pay to the Custodian, inter alia:
(1) any outstanding fee of the Custodian and any other amount payable to the Custodian;
(2) any additional expenses which the Custodian incurs or shall incur as a result of the termination of the Custody Addendum; and
(3) any losses arising during the arrangement or the settlement of the outstanding obligations.
(iv) Upon termination of the Custody Addendum, the Custodian shall arrange, as soon as possible, for the delivery to the Client or to his order of any Funds and Securities of the Client which are in the Custodian’s possession, provided that the Custodian shall retain all rights it may have for the payment of any outstanding obligations of the Client including, without any limitation, the payment of any sum which the Client owes to the Custodian under this Custody Addendum and the Terms and Conditions Agreement. The Custodian shall be entitled to sell such Securities or retain an amount of Fund to cover any outstanding obligations of the Client.
(v) If following the notice of termination submitted by the Client in accordance with clause 10(b)(i), the Custodian arranges for the delivery of all Securities and Funds of the Client to the Client or upon his order to any other party before the expiration of the thirty (30) day notice, upon the return by the Custodian the Funds and Securities, the Custodian’s obligations shall cease, provided that the Custodian shall retain all rights it may have for the payment of any outstanding obligations of the Client including, without any limitation, the payment of any sum which the Client owes to the Custodian under this Custody Addendum and the Terms and Conditions Agreement shall remain unaffected. The Custodian shall be entitled to sell such Securities or retain an amount of Funds to cover any outstanding obligations of the Client.
(vi) This Custody Addendum shall be terminated forthwith upon a judgment or order for winding up or liquidation or bankruptcy of the either under the provisions of applicable law.
(vii) The liability of the Custodian under this Custody Addendum for anything done or omitted to be done hereunder shall continue to exist even after the termination hereof.
Any notice given hereunder other than Proper Instructions shall be properly given by such notice addressed, dispatched or delivered (as the case may be), to the principal place of business for the time being of the party to whom it is addressed as the same is detailed at the beginning of this Custody Addendum.
The Custodian may, upon notice to the Client, assign or transfer any or all of its rights or obligations under this Custody Addendum. The Custodian may delegate any of its functions under this Custody Addendum to an associate of the Custodian subject to any relevant provisions set out above. The Client may not assign, transfer, pledge or otherwise encumber any of its rights or obligations under this Custody Addendum without the prior written consent of the Custodian.
13. Waiver; Amendment; etc.
No provision of this Custody Addendum may be changed, waived, discharged or discontinued, except by an instrument in writing signed by or on behalf of all parties hereto with the exception of Schedule 1 and Schedule 2 that may be amended unilaterally by the Custodian and the Custodian shall give notice of the amendment to the Client.
14. Applicable law, jurisdiction
This Custody Addendum shall be governed by and construed in accordance with the laws of Cyprus.
In relation to any legal action or proceedings arising out of or in connection with this Custody Addendum, the parties hereto apply to the jurisdiction of the competent Courts of Cyprus.
15. Various terms
(a) Where the Client shall be more than one person, the obligations of the Client under this Custody Addendum shall be joint and several and any reference to the Client in this Custody Addendum shall be interpreted as reference to any one or more of these persons. Any warning or notice given to any of such persons which constitute the Client shall be deemed to have been given to all the persons constituting the Client. Any order given by any of these persons which constitute the Client shall be deemed to have been given by and on behalf of all the persons which constitute the Client.
(b) Any stamp duties payable with respect to the Custody Addendum or any other documents required for the execution of transactions under the Custody Addendum shall be borne by the Client.
(c) The Client solemnly declares that:
(1) he has carefully read and has fully understood the whole content of this Custody Addendum with which he absolutely and unreservedly agrees and that he accepts that he shall be fully bound by its terms,
(2) he has received a copy of the Custody Addendum prior to the date of its signing and that he has had the opportunity to receive advice from a lawyer of his choice,
By signing this Custody Addendum the Client will be deemed to have considered, accepted and signed the Terms and Conditions Agreement that can be found on the official Web Sites of the Company www.is-wm.eu and www.is-wm.com.
This Custody Addendum has been drafted in duplicate, one copy is retained by the IF and the other is delivered by hand to the Client, each of which are considered as an original.
The Parties have signed this Custody Addendum on the date specified below.
GENERAL RATE / AMOUNT
Payable for the Securities purchased and/or held in custody with the Broker (including purchases through a third party), calculated for the actual number of days of safekeeping thereof on the basis of a year of 360 days, from and including the date of transfer to the Broker and up to but excluding the date of transfer from the Broker. This Custody Fee is inclusive of all taxes and duties shall be debited in arrears for each investment/period of safekeeping with the Custodian (i.e. upon Sale of the Securities for that investment or upon redemption of these Securities, if relevant, or upon Transfer of these Securities) from the Client’s account(s) (as appropriate) with the Custodian, and the Client hereby specifically authorises the Custodian to thus debit the above-mentioned account. However, if the safekeeping period for any Securities shall continue beyond the last calendar day of the quarter of any year, then the Custody Fee shall be calculated and charged for the period ending on that last calendar day of the quarter of that year; the next Custody Fee period shall then be calculated as of the first calendar day of the next quarter until either the date of Sale or Transfer of the Securities subject to that investment or such safekeeping or again until the last calendar day of the quarter, as appropriate, and so forth.
FEES FOR SPECIFIC SERVICES
Any other fees for any other ad-hoc service that may occur during the business relationship can be found on www.is-wm.com
SCHEDULE 2 ( If applicable in accordance with Paragraph 9(C) )
LIST OF SECURITY INTERESTS, LIENS OR RIGHTS OF SET-OFF GRANTED OVER SECURITY OF CASE OF THE CLIENT
Any security interests, liens or rights of set-off are granted by the Custodian over any Security or Funds of the Client, or where the Custodian has been informed that they are granted at any time for the duration of the Addendum
Investing in financial instruments involves a high degree of risk and may not be suitable to all investor. Trading in financial instruments can result in both an increase and decrease in capital. Please refer to our Risk Disclosure available in our web site for further information.
For more information about the company's policies when using this website and the contract terms that are used when opening an account with ISEC, please go to CONTRACT TERMS .