Version: 2018.01V E D & F MAN CAPITAL MARKETS EXECUTION ONLY SERVICES TERMS OF BUSINESS These terms of business, together with any accompanying documents (this "Agreement") set out the terms of business between the Client and E D & F Man Capital Markets Limited and certain other Affiliates (together, the Firm ), in respect of the Firm s execution only services. This Agreement may be read, where relevant, alongside the FIA/FOA International Uniform Execution Agreement ( Give-Up Agreement ). It is in the Client s interests to read this Agreement carefully. The Client should notify the Firm as soon as possible if there is anything contained in this Agreement which the Client does not understand. 1. GENERAL INFORMATION 1.1. Information about the Firm: E D & F Man Capital Markets Limited ( MCM Limited ) is authorised and regulated by the Financial Conduct Authority, FCA Register No. 194926. MCM Limited s registered office is 3 London Bridge Street, London SE1 9SG. Further information may be obtained from the FCA Register by visiting the FCA website https://register.fca.org.uk/, by telephoning 0845 606 1234 or +44 207 066 1000 from outside the UK, or by writing to the FCA at 25, The North Colonnade, Canary Wharf, London E14 5HS. 1.2. The Firm s Affiliate: The Firm may provide Services through its Affiliates: E D & F Man Capital Markets MENA Limited ( MCM MENA ). MCM MENA is authorised by the Dubai Financial Services Authority ( DFSA ) with DFSA firm reference number F003347. MCM MENA s registered office is Unit OT 17-42, Level 17, Central Park Offices, Dubai International Financial Centre, Dubai, PO Box 507074, UAE; and E D & F Man Capital Markets Inc. ( MCM Inc ). MCM Inc is authorised by the Commodities Futures Trading Commission, the Financial Industry Regulatory Authority, and the National Futures Association. MCM Inc. s registered office is at 140 E 45 th Street, New York, New York, 10017, USA. 1.3. Binding Agreement: This Agreement constitutes a legally binding contract which the Client accepts by continuing to give instructions to the Firm relating to the Services after the receipt of this Agreement from the Firm. This Agreement is to be read together with the Give-up Agreement to which the Firm and the Client are each a party. In the event of conflict or inconsistency between this Agreement and the Give-up Agreement, the terms of the Give-up Agreement shall prevail. 1.4. Scope and Commencement: This Agreement sets out the basis on which the Firm may provide the Services to the Client. This Agreement supersedes and replaces any previous agreement between the Client and the Firm for the provision of the Services. 1.5. Interpretation: In the event of any conflict between the terms of this Agreement and any updated Terms of Business displayed on the Firm s website, subject to Applicable Regulations, the Firm s website will prevail. 1.6. Communication with the Firm: The language of communication between the Firm and the Client will be English, and the Client will receive documents and other information from the Firm in English. The Client may communicate with the Firm in writing, by email or other electronic means, or orally (including by telephone). The Firm s website at https://www.edfmancapital.com/corporate-info/ contains further details about the Firm and the Firm s Services, and other information relevant to this Agreement, including updates to this Agreement, any existing policies and/or Services. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 1
1.7. Capacity: The Firm may, at its sole discretion, execute an Order received from the Client either (i) as principal, (ii) as agent, or (iii) partially as principal or agent as the Firm considers appropriate. The Firm shall treat the Client as having the relevant knowledge and expertise to use the Firm s Services, and to place Orders with the Firm, subject to the Applicable Regulations. 1.8. Client Categorisation: In accordance with Applicable Regulations, the Firm shall treat the Client for the purposes of the Services either as a per se professional client, an elective professional client or as an eligible Counterparty each as defined by COBS, and the Firm shall communicate to the Client its client categorisation in writing. A professional client is deemed to possess the knowledge and experience necessary to make its own investment decisions and assess the risks arising, and is not entitled to certain regulatory protections available to a retail client (as defined in COBS). The Firm does not provide Services to retail clients. An eligible Counterparty is deemed to possess greater knowledge and expertise than a professional client and is not entitled to certain regulatory protections available to either professional clients or retail clients. The Client has the right to request a different client categorisation and, where permissible by Applicable Regulations, the Firm will agree to an amended categorisation. If the Client requests to be categorised as a retail client, thereby requiring a higher level of regulatory protection, the Firm will not be able to provide the Services to the Client. The Client agrees it will notify the Firm as soon as practicable if, at any time, the Client considers that it would no longer meet the requirements of its existing client categorisation. 1.9. Professional Clients: The following additional provisions shall apply to a Client that is a professional client, the Firm shall: i) act in accordance with the best interests of the Client; ii) provide certain information before providing the Services; iii) not give or receive inducements; iv) achieve best execution in respect of Client orders; v) execute orders subject to constraints regarding timing and handling relative to the Orders of other clients; vi) ensure that information provided is fair, clear and not misleading ; and vii) provide certain information to Clients regarding Orders. 1.10. Financial Ombudsman Service: Where the Client is a not a natural person or otherwise an eligible complainant (as defined by the Glossary of the FCA Handbook), the Client will have no right of complaint to the Financial Ombudsman Service. Where the Client is a natural person who is acting as a consumer and where the Firm is unable to resolve the Client s complaint to his/her satisfaction, that Client may refer his/her complaint to the Financial Ombudsman Service, which is a free and independent organisation that specialises in settling disputes between clients and financial firms. The contact details for the Financial Ombudsman Service may be accessed through the following link: www.financialombudsman.org.uk. 1.11. Applicable Regulations: This Agreement and the provision of Services by the Firm are subject to Applicable Regulations so that: (i) if there is any conflict between this Agreement and any Applicable Regulations, the latter will prevail; (ii) nothing in this Agreement shall exclude or restrict any obligation which the Firm or an Associate has to the Client under Applicable Regulations; (iii) the Firm may take or omit to take any action the Firm considers necessary to ensure compliance with any Applicable Regulations; (iv) all Applicable Regulations and whatever the Firm does or fails to do to comply with the Applicable Regulations will be binding on the Client; and (v) such actions that the Firm takes or fails to take for the purpose of compliance with any Applicable Regulations shall not render the Firm, or any of its directors, officers, employees or agents liable for any loss suffered by the Client. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 2
1.12. Complaints procedure: The Firm is obligated to put in place internal procedures for handling complaints fairly and promptly. The Client may submit a complaint to the Firm, for example by letter, telephone, e-mail, or in person. The Firm will send the Client a written acknowledgement of the Client s complaint promptly following receipt, enclosing details of the Firm complaints procedures, including when and how the Client may be able to refer the Client s complaint to the Financial Ombudsman Service. The Client shall contact the Firm if it would like further details regarding the Firm complaints procedures. 1.13. FSCS Protection: The Firm participates in the Financial Services Compensation Scheme (the Scheme ) for those Clients that are covered ( Eligible Claimants ). The Scheme compensation in the event of the inability of an FCA-regulated firm to pay monies due, or satisfy obligations owed, for designated business up to a maximum compensation limit of 50,000 for investments per Eligible Claimant. Details of Eligible Claimants and the Scheme can be found at the following link https://www.fscs.org.uk/. 2. DATA PROTECTION AND CONFIDENTIALITY 2.1. The Client has rights of access to and rectification or erasure of the Client s personal data and to restrict or object to its processing, and to inform the Firm that it does not wish to receive marketing information. The Client acknowledges: the Firm s use, disclosure and other processing of the Client s information is permitted by applicable data protection law because it is: (i) necessary for the purposes of the Firm s legitimate interests (which are not overridden by prejudice to the Client s privacy); and/or, in some cases, (ii) necessary so that the Firm can comply with Applicable Regulations. the Firm will retain the Client s personal information for five (5) years or such other period as required by the Firm s internal policies and/ or by Applicable Regulations. 2.2. Before providing the Firm with any information relating to identifiable living individuals relating to this Agreement, the Client shall provide the following information to those individuals (except where those individuals already have the information): (D) the categories of personal data that the Client is providing to the Firm; the Firm's identity, and the fact that those individuals can contact the Firm regarding their data via the following email address: DPO@edfmancapital.com; that the Firm may process those individuals' personal data for the purposes of administering and operating the Client's account, complying with Applicable Regulations and such other purposes as may be communicated by the Firm to the Client from time to time; that this processing is permitted by applicable data protection law because it is: (i) necessary for the purposes of the Firm's legitimate interests in pursuing the purposes set out in paragraph (which are not overridden by prejudice to the relevant individuals' privacy); and/or, in some cases, (ii), necessary so that the Firm can comply with Applicable Regulations; 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 3
(E) (F) (G) that this may involve transfer of the personal data of those individuals to any country, including countries outside the European Economic Area, but that in those cases, except where the relevant country has been determined to ensure an adequate level of data protection by the European Commission or the Firm needs to make the transfer in order to perform a contract concluded in the interests of the relevant individual, the Firm will ensure that the transferred personal data are protected by a data transfer agreement in the appropriate standard form approved for this purpose by the European Commission (and that further details of these transfers and copies of these agreements are available from the Firm on request); that the Firm will retain the personal data of those individuals for five (5) years, or such period as required to comply with Applicable Regulations; and that those individuals: (i) have rights of access to and rectification or erasure of their personal data and to restrict or object to its processing, which they can exercise by contacting the Firm (see paragraph above); and (ii) can lodge complaints about the Firm's processing of their personal data with the office of the Information Commissioner (www.ico.org.uk). 2.3. In some circumstances, the Client is permitted to require certain of its information to be transferred to it or a third-party, under data protection laws which the Client can exercise by contacting the Firm. The Client can lodge complaints about the Firm s processing of the Client s personal data with the office of the Information Commissioner (www.ico.org.uk). 2.4. Confidentiality of the Client s information: The Firm will treat all information that it holds about the Client or Orders as confidential, even when the Client is no longer a client of the Firm. The Client agrees, however, that the Firm and the Firm s Associates may disclose this information without the Client s consent to: (D) (E) those who provide advice or other services to the Firm and its Associates, or act as the Firm/Associates agents; anyone to whom the Firm or Associates transfers or proposes to transfer any of its rights or duties under this Agreement; credit reference agencies or other organisations: (i) that help the Firm or Associates and others make credit decisions and reduce the incidence of fraud or (ii) in the course of carrying out identity, fraud prevention or credit control checks; any other party where the Firm or Associates are required to do so by Applicable Regulations or where the Firm/ Associates interests require disclosure; and use the Client s information to monitor and analyse its conduct, provide Services to the Client, and enable the Firm to carry out statistical and other analysis. 2.5. Confidentiality of Firm information: The Client will treat all non-public information it holds about the Firm and its Associates as confidential, including the terms of this Agreement. The Firm agrees, however, that the Client may disclose that information to its Associates and, where reasonably necessary, to its agents and others who provide advice or other Services to the Client without the Firm's consent, and that the Client and its Associates may disclose that information without the Firm's consent to any party where the Client is required to do so by Applicable Regulations or to any regulator or government agency upon request from such entity. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 4
3. SERVICES 3.1. The Services: On the Client s instruction, the Firm will provide the Client with dealing Services in relation to cash equities, futures, options and other financial instruments or products which the Firm may agree from time to time. The Client agrees that the Services shall be on an execution-only basis, and shall not involve the provision of investment advice. 3.2. Own Judgement and Suitability: In requesting that the Firm executes or transmits any Order, the Client represents that: (a) the Client has been solely responsible for making its own independent appraisal and investigation into the risks of placing an Order; (b) the Client has sufficient knowledge, market sophistication, professional advice and experience to make its own evaluation of the merits and risks of any Order; and (c) the Client has not relied upon any statements, representations or undertakings from the Firm that are not set out in this Agreement. The Firm gives no warranty and assumes no fiduciary duty as to the suitability of the Services under this Agreement. 3.3. Charges: The Client shall pay the Firm s charges as agreed with the Client from time to time or as may be notified by the Firm in advance including any: (D) (E) (F) fees, commissions or other charges charged by the Firm for the provision of the Services; taxes or duties imposed by any Applicable Regulations on any Orders effected by the Client; fees or other charges imposed by any Infrastructure, or any delegate or service provider involved in the provision of the Services; fines imposed as a result of any Applicable Regulations where attributable to the Client s conduct; interest on any amount due to the Firm at the applicable rate (such rates determined from time to time by the Firm and available upon request); and other value added or other applicable taxes in respect of any of the foregoing, including any withholding tax. 3.4. Remuneration and sharing of charges: The Firm may, in the course of providing the Services, pay or receive fees, commissions, rebates or non-monetary benefits to or from third-parties, provided the payment or benefit: is permissible under Application Regulations; is designed to enhance the quality of the Services that the Firm provides to the Client; and does not impair the Firm s compliance with its duty to act honestly, fairly and professional and in accordance with the Client s best interest. Where the Firm pays or receives such amounts, it will disclose the existence, nature and amount of the payment or benefit, or where the amount cannot be ascertained, the method for calculating that amount, separately to the Client in accordance with Applicable Regulations. Where the Firm receives an on-going inducement in relation to a Service provided to the Client, the Firm will inform the Client at least annually about the actual amount of payments or benefits received or paid. Minor non-monetary benefits that the Firm provides or receives may be described in a generic way. 4. INSTRUCTIONS AND BASIS OF DEALING 4.1. Authorised Persons: The Client shall provide the Firm with a list of the Client s Authorised Persons together with specimens of their signatures if written instructions relating to the Services are to be accepted by the Firm. The Firm shall be entitled to rely upon the continued authority of an Authorised Person until the Firm receives notice from the Client to the contrary. Any communications purporting to limit the Client s or such Authorised Person's authority (such as, for example, authorised signatory lists) will not be accepted and will not be binding on the Firm. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 5
The Firm is entitled to rely upon communications and other actions from any of the Client s Authorised Persons or agents and any communication or action which the Firm believes, in good faith, to have originated from the Client, its Authorised Persons or the Client s authorised agent. The communication or action will be binding on the Client and the Client shall indemnify and hold the Firm and the Firm s Associates harmless from losses incurred in reliance upon those communications or actions. 4.2. Right not to accept Orders: The Firm may, but shall not be obliged to, accept Orders. If the Firm declines to accept an Order, the Firm shall not be obliged to give a reason but the Firm shall promptly notify the Client accordingly. 4.3. Cancellation/withdrawal of instructions: The Firm can only cancel the Client s instructions if the Firm has not acted upon those instructions. Instructions may only be withdrawn or amended by the Client with the Firm s consent. 4.4. Execution of Orders: The Firm shall use commercially reasonable endeavours to execute or arrange for the execution of any Order promptly, but in accepting the Client s Orders the Firm does not represent or warrant that it will be possible to execute or arrange the execution of such Order or that it will be possible according to the Client s instructions. The Firm shall carry out an Order on the Client s behalf only when the relevant Infrastructure is open for dealings, and the Firm shall deal with any instructions received outside Infrastructure hours as soon as possible when that relevant Infrastructure is next open for business (in accordance with the Rules of that Infrastructure). 4.5. The Firm s execution policy: The Firm s order execution policy will apply unless the Client gives the Firm specific instructions that are inconsistent with the Firm s order execution policy. The Client confirms that it has read and agrees to the Firm s order execution policy. The Firm shall, as soon as it is practicable, notify the Client of any material changes to the Firm s order execution policy, but it is the Client s responsibility to check for any other changes to the Firm s order execution policy as published from time to time at https://www.edfmancapital.com/corporate-info/. The Firm will consider the continued placement of Orders by the Client to constitute the Client s continued consent to the Firm s order execution policy that is in effect from time to time. 4.6 Confirmations: Terms applicable to professional clients: Unless: (i) the Firm enters into a separate agreement with the Client regarding the content and timing of confirmations, or (ii) a confirmation has been provided to the Client by another person, the Firm will send the Client confirmations (which may be communicated together in a report or statement of trades) as soon as is practicable, but in any event by the end of the next trading day, for any Orders that the Firm or the Firm s agent has executed on the Client s behalf on that trading day. The confirmation may be sent by way of e-mail to the e-mail address on record for the Client. It is the Client s responsibility to inform the Firm if the Client does not receive a confirmation or if any confirmations are incorrect. Confirmations shall, in the absence of manifest error, be conclusive and binding on the Client, unless the Firm receive an objection in writing from the Client within two (2) business days of despatch to the Client or the Firm notifies the Client of an error in the confirmation within the same period. This is a Confirmation only service and is not an agreement by the Firm to provide transaction reporting for the purposes of Applicable Regulations. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 6
Terms applicable to eligible counterparties: The Client acknowledges that the Services under this Agreement are execution-only, for which the Firm shall not issue any trade confirmations or notifications. By accepting this Agreement, the Client acknowledges and consents to not receiving any trade confirmations or notifications in respect of Transactions executed by the Firm, subject to Applicable Regulations. 5. EVENTS OF DEFAULT AND TERMINATION 5.1. Events of Default: The following shall constitute an Event of Default : (D) the Client fails to perform any of its obligations under this Agreement; the Client takes any corporate action or other steps are taken or legal proceedings are started for its winding-up, dissolution, administration or re-organisation or for the appointment of a liquidator, receiver, administrator, trustee or similar officer in relation to the Client or its assets; the Client is unable to pay its debts as they fall due; and/or The Client makes a composition or agreement of a similar nature with its creditors. 5.2. Termination upon breach: Upon an Event of Default or at any time after the Firm determines, in its sole discretion, that the Client has not performed (or the Firm reasonably believes that the Client will not be able or willing in the future to perform) any of its obligations under the Agreement, the Firm shall be entitled, without prior notice to the Client to reject any Order (whether or not it has been accepted by the Firm and without prejudice to the generality of clause 3.1), or take any action open to the Firm under the Give-Up Agreement and to terminate this Agreement immediately. 5.3. Termination by notice: Unless required otherwise by Applicable Regulations, either party may terminate this Agreement by giving ten (10) days written notice of termination to the other. 6. EXCLUSIONS, LIMITATIONS AND INDEMNITY 6.1. General Exclusion: Neither the Firm, nor its directors, officers, employees or agents shall be liable for any losses, damages, costs or expenses, whether arising out of negligence, breach of contract, misrepresentation or otherwise, incurred or suffered by the Client under this Agreement (including, without limitation, any Order or where the Firm has declined to accept an Order) unless such loss is a reasonably foreseeable consequence and arises directly from the Firm s gross negligence, wilful default or fraud. In no circumstance shall the Firm have liability for losses suffered by the Client or any third-party for any special or consequential damage, loss of profits, loss of goodwill or loss of business opportunity arising under or in connection with this Agreement, whether arising out of negligence, breach of contract, misrepresentation or otherwise. Nothing in this Agreement will limit the Firm s liability for death or personal injury resulting from the negligence. 6.2. Entire Agreement: The Client acknowledges that it has not relied on or been induced to enter into this Agreement by a representation other than those expressly set out in this Agreement. The Firm will not be liable to the Client for a representation that is not set out in this Agreement, and that is not fraudulent. 6.3. Tax and other charges: The Client shall pay to the Firm such sums as the Firm may from time to time require in or towards satisfaction of any debit balance on any of the Client s accounts with the Firm and, on a full indemnity basis, any losses, liabilities, costs or expenses (including legal fees), taxes, imposts and levies which the Firm may incur or be subjected to with respect to any of the Client s Order or with an intermediate broker or as a result of any misrepresentation by the Client or any violation by the Client of the its obligations under this Agreement (including any Order) or by the enforcement of the Firm s rights. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 7
Without limitation, the Firm does not accept liability for any adverse tax, accounting or other implications of any Order whatsoever. The Client is responsible for all taxes, duties and levies payable with respect to an Order executed by the Firm under this Agreement. 6.4. Indemnity: The Client will indemnify and hold harmless the Firm from and against, and shall pay on demand, any losses, liabilities, costs or expenses (including legal fees), taxes, imposts and levies which the Firm incurs: (D) (E) in performing the Services; as a result of any misrepresentation by the Client or any breach by the Client of its obligations under this Agreement (including in respect of any Order) or of Applicable Regulations; from the enforcement of the Firm's rights; as a result of any investigation, action, litigation or proceeding by or involving any government agency, Infrastructure, regulatory or self-regulatory authority, counterparty, dealer, or other third-party with respect to any Order; or in connection with a breach of Applicable Regulations by the Firm caused by the conduct of the Client (including fines). 6.5. Force Majeure: The Firm shall not be liable to the Client for any losses resulting from any failure, interruption or delay in performance of any obligation arising under this Agreement resulting from acts or events not reasonably within the Firm s control, including without limitation, acts of war and terrorism, insurrection, civil disorder, acts of God, industrial action, any acts or regulations of any governmental or supranational bodies, authorities or Infrastructures, or any operational or technical failure. 6.6. Effect of Applicable Regulations: Nothing in this Agreement will exclude or restrict any duty or liability the Firm may have to the Client under Applicable Regulations which the Firm is not permitted to exclude or restrict. 7. MISCELLANEOUS 7.1. Amendments: The Firm has the right to amend the terms of this Agreement. If the Firm makes any change to this Agreement, the Firm will give at least ten (10) Business Days written notice to the Client, or immediately where required to comply with any Applicable Regulations. Such amendment will become effective on the date specified in the notice. Amendments and updates to this Agreement may be made via the Firm s website; the Client shall be notified by e-mail when such amendment or notification is made. Unless agreed otherwise, an amendment will not affect any outstanding Order or any legal rights which may have already arisen. 7.2. Notices: All communications will be to the address and to the individual/department specified in the account opening form or by proper notice in writing accompanied by any necessary evidence of the change. Communications are taken to be received: if sent by post: three (3) Business Days after the date of posting (or five (5) if sent to or from a place outside the relevant country); if sent by electronic mail: on the day following dispatch; and if posted on the Firm s website: on the day following such posting. 7.3. Electronic Communications: Subject to Applicable Regulations, any communication between the Firm using electronic signatures shall be binding as if it were in writing. Orders or instructions given to the Client via e-mail or other electronic means will constitute evidence of the Orders or instructions given. A copy of the record will be available on request for a period of five (5) years, or as otherwise required by the relevant Regulatory Authority. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 8
7.4. Recording of calls: If the Client gives the Firm execution of trade instructions by telephone, the Client s conversation may be recorded. The Firm may record telephone conversations without use of a warning tone to ensure that the material terms of the Order, and any other material information relating to the Order is promptly and accurately recorded. Such records will be the sole property of the Firm and accepted by the Client as evidence of the Orders or instructions given. A copy of the recording will be available on request, for the period designated by the Firm s internal policies and/or the relevant Regulatory Authority. 7.5. The Firm s records: The Firm s records, unless shown to be wrong, will be evidence of the Client s dealings with the Firm in connection with the Firm s Services. The Client will not object to the admission of the Firm records as evidence in any legal proceedings because such records are not originals, are not in writing or are documents produced by a computer. The Client will not rely on the Firm to comply with the Client s record keeping obligations, although records may be made available to the Client on request at the Firm s sole discretion. The Firm may retain such records for such period as may be required by the Firms internal policies and/or Applicable Regulations. 7.6. Client records: The Client agrees to keep adequate records in accordance with Applicable Regulations to demonstrate the nature of Orders submitted and the time at which such Orders are submitted. 7.7. Severance: If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired. 7.8. Money laundering prevention: The Firm is obligated to comply with Applicable Regulations concerning money laundering and the financing of terrorism. These Applicable Regulations require the Firm to: (i) deter money launderers from using the Firm as a conduit for their illegal activities, (ii) to identify and report suspicious transactions, and (iii) to keep an audit trail for use in any subsequent investigation into money laundering activities. The Firm s obligations under Applicable Regulations override any obligation of confidentiality which may otherwise be owed to the Client (and, where applicable, the Client s principal(s)). The Firm may be required to notify relevant authorities in the jurisdictions in which it does business of any Orders which it suspects may involve the laundering of the proceeds of, or involve the financing of, any criminal activity regardless of where such criminal activity may have taken place. The Firm may also, from time to time, request written assurance of such compliance and/or request copies of records evidencing such with the Client will provide promptly. If at any time, the Client is unable to provide the Firm with a written assurance of compliance and/or the appropriate records, the Firm may terminate the Agreement with immediate effect without limiting any other rights it may hold under this Agreement. 7.9. Legal Entity Identifier ( LEI ): The Client, where it is a legal entity, represents and warrants to the Firm that it has obtained and will duly renew and maintain a validated and issued LEI, and that the Client will inform the Firm immediately of any changes to its LEI and of any new LEI issued. 8. GOVERNING LAW AND JURISDICTION 8.1. Governing law: An Order which is subject to the Rules of an Infrastructure shall be governed by the law applicable to it under those Rules. Subject thereto, this Agreement and all non-contractual obligations and other matters arising from it or in connection with it shall be governed by and construed in accordance with the laws of England and Wales. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 9
8.2. Arbitration: The Client agrees that the Firm reserves the right to refer any dispute arising from or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or the consequences of its nullity or any non-contractual obligation arising out or in connection with this Agreement) to arbitration. The Arbitration Rules shall be the London Court of International Arbitration ("LCIA"). Any provisions of the Arbitration Rules of the LCIA relating to the nationality of an arbitrator shall, to that extent, not apply. For the purposes of arbitration each of the parties waives any right of application to determine a preliminary point of law or appeal on a point of law under Sections 45 and 69 of the Arbitration Act 1996. The arbitral tribunal shall consist of a sole arbitrator. The seat of arbitration shall be London, England and the language of arbitration shall be English. 8.3. Jurisdiction: Except where the Firm decides to refer a dispute for arbitration, for the purposes of this Agreement the courts of England and Wales shall have jurisdiction to settle any proceedings. 9. INTERPRETATION AND CONSTRUCTION 9.1. Interpretation: In this Agreement: "Affiliate" "Applicable Regulations" "Associate" Authorised Person "Business Day" Client COBS means, in relation to the Client or the Firm, an undertaking in the same group. means, (a) the Rules of any applicable Regulator or any other rules of a relevant regulatory authority; (b) the Rules of the relevant Infrastructure; and/or (c) all other applicable laws, rules, procedures, guidance and regulations (including, without limitation, accounting rules and anti-money laundering/sanctions legislation). means: (a) one of the Firm s Affiliates; (b) a Vendor; (c) a representative or delegate whom the Firm or one of the Firm Affiliates, appoints; (d) any sub-contractor or other service provider engaged in connection with the Services; and/or (e) any other person with whom the Firm has a relationship that might reasonably be expected to give rise to a community of interest between the Firm and such person. means the officers, employees or agents who are authorised, either alone or with others, to act on the Client s behalf in the giving of instructions and performance of any other acts, discretions or duties under this Agreement and which the Client has communicated to the Firm in writing as required pursuant to clause 4.1. means a day on which banks are open for business in the country of incorporation of the Firm. means the client of the Firm, which is a party to this Agreement. means the conduct of business chapter of the FCA Rules. "Event of Default" means any of the events of default as listed in clause 5. FCA FCA Rules Infrastructure means the UK Financial Conduct Authority. means the rules and related guidance of the FCA as set out in the FCA Handbook as amended from time to time. means the whole or part of any relevant regulated market, multilateral trading facility (as such terms are defined in the FCA Rules) and the equivalent in any other relevant jurisdiction any other types of crossing network or trading venue and its central counter-party, clearing house and settlement system. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 10
Order Regulator or Regulatory Authority Rules means any Order, direction or instruction from the Client under or in accordance with the terms of this Agreement related to the Services provided to the Client. means the relevant regulatory authority for a party to this Agreement, and as required by the context of the clause where used. means, in any relevant jurisdiction the articles, rules, regulations, procedures and customs of any applicable market or Infrastructure as in force from time to time. Services has the meaning set out in clause 3. Vendor means a third-party technology or market data provider. 9.2. General interpretation: A reference in this Agreement to a "clause" shall be construed as a reference to a clause of this Agreement. References in this Agreement to any statute or statutory instrument or Applicable Regulations include any modification, amendment, extension or re-enactment thereof, as in force from time to time. A reference in this Agreement to "document" shall be construed to include any electronic document. The masculine includes the feminine and the neuter and the singular includes the plural and vice versa as the context admits or requires. Words and phrases defined in any Rules published by a Regulator have the same meaning in this Agreement unless expressly defined in this Agreement. 9.3. Headings: Headings are for ease of reference only and do not form part of this Agreement. 9.4. Third Party Rights: The Agreement shall be for the benefit of and binding upon the Firm and the Client and their respective successors and assigns. Save where agreed otherwise in writing, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999. 2017 E D & F Man Capital Markets Limited Execution only Terms of Business 11