Terms of Business
1. Interpretation
1.1
| Affiliate | Means in relation to the Manager, any entity controlled, directly or indirectly, by the Manager, any entity that controls, directly or indirectly, the Manager or an entity directly or indirectly under the common control with the Manager; |
| Agreement | Means this Agreement and all Schedules attached hereto; |
| Business Day | Means a day on which commercial banks are generally open for business (including dealings in foreign exchange and foreign currency deposits) in London; |
| Cessation of Investment Management Service Date | Means 5pm local time in London on the first following day that is a Business Day after the Termination Notice Date; |
| Confidential Information | Means all information or material communicated between the Parties, including the terms of this Agreement, provided that Confidential Information shall exclude information or material which at the time of its disclosure is, or which thereafter becomes, (in each case otherwise than as a result of any act or default by the recipient), part of the public domain by publication or otherwise; |
| Conflict of Interest Policy | Means the policy of the Manager relating to the identification, management and mitigation of conflicts of interest as required by the FCA Rules and as amended by the Manager from time to time; |
| Counterparties | Means the entity (or entities) selected by the Manager, where applicable, pursuant to the Order Execution Policy, to effect a transaction, execute a Client order or pass or place an order for execution and includes brokers, dealers, market makers, executing brokers and clearing brokers (whether acting as principal or agent); |
| FoIA | Means the Freedom of Information Act 2000; |
| FCA Rules | Means the rules and guidance contained in the Handbook issued by the FCA; |
| Insolvency Event | Means the occurrence, in respect of either Party, of any of the following events:
|
| Litigation | Means any claim or potential claim in any insolvency proceedings, class action, securities litigation or other litigation, collective redress, or proceedings affecting assets held from time to time; |
| Losses | Includes but is not limited to losses, damages, costs, claims, liabilities, charges, demands and expenses; |
| Order Execution Policy | Means the policy of the Manager relating to the execution of orders and decisions to deal on behalf of clients as required by the FCA Rules and as amended by the Manager from time to time; |
| Portfolio | Means the portfolio of assets of the Client, designated from time to time by the Client as subject to the management of the Manager pursuant to this Agreement; |
| Prime Broker | Means the executing broker or clearer to be appointed by the Client under power of attorney and with whom the Manager shall liaise in the management of the Portfolio; |
| Retail Client | Has the same meaning as defined under the FCA Rules, namely a client who is neither a professional client or an eligible counterparty; |
| Termination Date | Means the date determined in accordance with Clause 21 (Termination); |
| Termination Event | Means the occurrence at any time with respect to either Party of any of the following events:
|
| VAT | Means value-added tax under the Value-Added Tax Act 1994. |
1.2.1
Any other words or phrases used which are defined in the FCA Rules shall have the same meanings in this Agreement unless the context otherwise requires.
1.2.2
Reference to statutory provisions, regulations, notices or the FCA Rules shall include those provisions, regulations, notices, or rules as amended, extended, consolidated, substituted or re-enacted from time to time.
1.2.3
Reference to legislation, Acts of Parliament or other statutory provisions are, for the avoidance of doubt, reference to United Kingdom legislation, Acts of Parliament, and statutes.
1.2.4
Words in headings are for information only and shall not affect the construction of this Agreement.
1.2.5
References to the singular include the plural and vice versa.
2. Appointment
2.1
The Client appoints the Manager as discretionary investment manager of the Portfolio to provide services in accordance with this Agreement. The Manager accepts such appointment.
2.2
The Manager is authorised and regulated by the FCA in the conduct of investment business in the United Kingdom under FCA No: 925231
3. Commencement Date
3.1
This Agreement shall come into full force and effect on receipt of:
3.1.1
This Agreement, duly signed and completed by both Parties; and
3.1.2
Confirmation from the Client of the cash and/or securities which will comprise the Portfolio and the denomination and currency thereof.
3.2
The Client agrees that:
3.2.1
The minimum investment amount in a Portfolio in cash and/or existing securities is £75,000.00 (Seventy five thousand Pounds);
3.2.2
The measurement of the performance of the Portfolio shall be undertaken from the performance Commencement Date;
3.2.3
In the event that the Manager, in accordance with an instruction, undertakes transactions in the Portfolio following the Commencement Date but prior to the physical settlement of assets in the Portfolio into the relevant account of the Client to which the Manager has access, the Client shall indemnify the Manager against any losses that may be incurred in the event of delay or failure to complete such settlement.
4. Client Categorisation
For the purposes of the FCA Rules and based on information obtained in respect of the Client, the Manager has categorised the Client as a Retail Client for all services which entitles the Client to receive full regulatory protection.
5. The Investment Management Service and Other Services
5.1
The Manager shall provide:
5.1.1
the service of making decisions to invest the assets comprising the Portfolio with a view to achieving the investment objectives of the Client; and
5.1.2
other services as set out in this Agreement.
5.2
Subject to any instructions given by the Client, applicable law and any other provisions of this Agreement, the Manager shall have full authority at its sole discretion, without prior reference to the Client, as agent and in the name of the Client and at such times as the Manager shall think fit, to make decisions to invest the assets comprising the Portfolio in accordance with the Client’s interests and to take such other steps including without limitation:
5.2.1
to buy, sell, exchange, redeem, hold, convert or otherwise deal with assets of any nature;
5.2.2
to subscribe to issues and apply for offers for sale and to accept placings;
5.2.3
to enter into underwritings and sub-underwritings of any investments;
5.2.4
to providing any undertaking in relation to offers, placings or rights conferred by a particular investment;
5.2.5
to effect transactions in regulated or unregulated collective investment schemes;
5.2.6
to exercise or refrain from exercising any right conferred by a particular investment to buy, sell, subscribe for, exchange or redeem an investment;
5.2.7
to exercise any governance or ownership right conferred by a particular investment;
5.2.8
to make call or term deposits;
5.2.9
to enter into foreign exchange transactions;
5.2.10
to enter into any derivative transactions; and
5.2.11
generally, to enter into any kind of transaction or arrangement.
For the avoidance of doubt, the Investment Management Service shall not constitute investment advice. However, the Manager may provide investment research and financial analysis and other general information.
5.3
Without limiting the generality of Clause 5.2 above, any instructions and any other provisions of this Agreement, the Client authorises the Manager:
5.3.1
to select and use such counterparties or trading venues to effect transactions on behalf of the Client;
5.3.2
to give instructions for the opening of accounts in the name of the Client and the operation of such account;
5.3.3
to negotiate, amend, execute, sign, deliver or otherwise bring into effect all such agreements, master agreements, confirmations, account opening documents, contracts, deeds, other instruments, notifications, warranties, undertakings, representations and indemnities in the name of, binding against, and on behalf of the Client;
5.3.4
to give instructions to the Custodian to transfer cash or securities held by the Custodian on behalf of the Client in connection with the settlement of transactions;
5.3.5
to take any action which the Manager reasonably considers to be necessary, desirable, and incidental to carry out the services under this agreement.
5.4
As the Client is classified as Retail, the Manager is required to assess whether the Investment Management Service is appropriate and suitable for the Client before providing it. The Manager will document appropriateness and suitability in accordance with the FCA requirements. To this end, the Manager will require sufficient information from the Client regarding its knowledge and experience of investing to ensure that the Client properly understands the risks involved and the service being offered. The Manager will also require information from the Client regarding its investment objectives and financial standing (can the Client absorb the financial risk associated with the investing).
5.5
The Manager will disclose any risk warnings as required and in this regard the Client shall see the statement regarding risk annexed hereto at Schedule 2.
6. Fees
6.1
The Client shall pay the Manager the fees set out in Schedule 1 (Fees). The fees shall be payable from the Commencement Date unless the Parties agree otherwise.
6.2
In addition to the Manager’s fees, the Client will be liable for:
6.2.1
any costs payable and properly incurred under this Agreement, including all reasonable expenses, liabilities, charges and costs including but not limited to any brokerage, transfer fees, registration fees, exchange fees, and stamp duty, tax or other fiscal liabilities.
6.2.2
any costs and expenses payable or associated with assistance with litigation in connection with the assets in the Portfolio; and
6.2.3
any costs relating to the termination of this agreement payable in accordance with Clause 21 (Termination).
6.3
The fees set out in Schedule 1 (Fees) are exclusive of any VAT or similar taxes which, if payable, shall be payable in addition by the Client.
7. The Guidelines
7.1
The Manager shall manage the Portfolio solely at its own discretion with reference to the Guidelines as described in this clause 7.
7.2
The Manager shall proceed to make an investment only after having given due consideration to the appropriateness of the investment by reference to various recognised investment appraisal techniques, including asset allocation modelling, and after evaluation of all external and internal research.
7.3
Investments in the Portfolio are monitored by the Manager’s Compliance Director and Managing Partner. Performance of investments made will be evaluated by reference to factors including market conditions and any published updates on the prospect of the investment. Such updates shall include changes in broker price targets/expectations or announcements from the board of the company in which the investment has been made.
7.4
The Guidelines shall not be breached as a result of any events or circumstances outside the reasonable control of the Manager including, but not limited to, changes in the price or value of the assets in the Portfolio brought about solely through movements in the market, the reduction in and/or lack of availability of assets which are envisaged to be in the Portfolio, an inflow to, outflow from the Portfolio or breaches arising during an agreed transition period following an amendment of the Guidelines or a benchmark or caused by following an instruction of the Client.
7.5
Unless specified in the Guidelines, compliance with the Guidelines shall be determined as at the date of purchase of a relevant investment and the Guidelines shall not be deemed to be breached as a result of changes in the value or status of an investment following purchase.
7.6
Notwithstanding any other provision in this Agreement, no warranty, assurance or undertaking is given by the Manager as to the performance, returns, increase or retention of value of profitability of the Portfolio or that the investment objectives or targets shall be successfully achieved, whether in whole or in part. In this regard, the Client shall note the risk warning contained in Schedule 2 to this Agreement.
8. Delegation
8.1
Accept as otherwise agreed between the Parties:
8.1.1
The Manager may appoint or retain any person which is an Affiliate of the Manager to perform all or any such Investment Management Service provided the Manager notifies the Client in writing promptly thereafter; and
8.1.2
The Manager may, with the prior written consent of the Client (which consent shall not be unreasonably withheld) appoint or retain any person who is not an Affiliate of the Manager to perform all or any of such Investment Management Service.
For the avoidance of doubt, the use of Counterparties as set out in Clause 9 (Dealing and Use of Counterparties) is not a delegation within the meaning of this clause.
8.2
The Manager shall select and use any delegate appointed or retained pursuant to clause 8.1 above in accordance with the standard of care.
9. Dealing and use of Counterparties
9.1
Subject to the Guidelines as described above in clause 7 and the Order Execution Policy, where applicable, the Manager may affect transactions with such Counterparties and on such trading venues as it considers appropriate in accordance with the standard of care. Where applicable all transactions shall be effected in accordance with the rules and regulations of the relevant market or exchange and the Manager may take all steps as may be required or permitted by such rules and regulations and by appropriate market practice.
9.2
The Manager shall select and use Counterparties or trading venues pursuant to this Clause 9 in accordance with the standard of care.
9.3
If any Counterparty fails to deliver any necessary documents or to complete any transaction, the Manager shall take reasonable steps on behalf of the Client to rectify such failure or obtain compensation in lieu thereof provided that such steps do not constitute litigation in which case the provisions of Clause 20 (Litigation) shall apply. All resulting reasonable costs and expenses properly incurred by the Manager shall be paid by the Client.
10. Order Execution
10.1
The Client hereby confirms that it consents to the Order Execution Policy. In particular, the Client agrees that the Manager may trade outside of the regulated market or a multilateral trading facility.
10.2
The Manager shall at all times comply with its Order Execution Policy and in particular will act in the best interests of the Client.
10.3
Specific instructions in relation to the execution of orders may prevent the Manager from following its Order Execution Policy.
10.4
The Manager may aggregate orders on behalf of the Client with those of its other Clients and Clients of its Affiliates. The Manager will allocate such orders on a fair and reasonable basis in accordance with the requirements of the FCA Rules. The Client acknowledges and agrees that aggregation may operate to the advantage or disadvantage of the Client.
10.5
Where a transaction is effected in breach of the Guidelines or is otherwise prohibited under this Agreement, the Manager or one of its Affiliates may act as principal in executing a transaction with the Portfolio to correct the error.
10.6
Based on information provided by the Client, the Manager shall take reasonable steps to ensure that in providing the Investment Management Service a decision to trade is suitable for the Client. As the Client is a Retail Client, the Manager assumes that the Client does not have the necessary level of experience and knowledge in order to understand the risks involved in the transaction or in the management of the Portfolio. Therefore, the Manager acknowledges that the Client is entitled to a higher level of protection which the Manager will at all times ensure that the Client receives in the provision of the Investment Management Service as described in this Agreement. In particular (but without limitation), the Manager will make sure that the Client becomes aware of and understands all risks involved in the investments undertaken, as well as that the Client is properly informed of all orders placed and transactions carried out by the Manager. The Client should also be responsible for ensuring that information provided to the Manager is kept up to date so as to assess whether the transactions are suitable for the Client.
10.7
The Manager shall not enter into any dealing arrangements other than as permitted by the FCA Rules.
11. Client Money
11.1
All Client money shall be held by the Prime Broker.
11.2
Liquid funds received for or dispersed from the Portfolio by the Prime Broker or their nominee are credited and debited to an account or accounts held with one or more institutions authorised by the FCA (and/or one or more equivalent institutions outside the United Kingdom) in the name of the Prime Broker and/or their nominee. These accounts will form part of the Portfolio.
11.3
Funds may be temporarily held or controlled by another person (such as a broker or clearing house) where that is necessary to permit the management of the Portfolio.
11.4
Credits and debits are made directly to the Portfolio accounts or, where it is necessary and in the interests of efficiency, to the Portfolio accounts through a master clearing Client account held in the name of the nominee.
11.5
Funds within the Portfolio accounts shall remain at all times outside the beneficial ownership of the Manager or the Prime Broker or the nominee and are subject to the Client money regulations of the FCA.
12. Custody of assets
12.1
The Manager shall not provide custody services to the Client.
All assets forming part of the Portfolio shall be held by either the Client or the Custodian pursuant to a separate agreement. The Manager shall at no time hold any assets belonging to the Client. The Client acknowledges that it has been and will be solely responsible for the selection, appointment, monitoring and supervision of the Custodian and for any services the Custodian provides to the Client including, without limitation, cash management services, stock lending and repo services and foreign exchange services.
12.2
The Manager will send a statement of the investments held in custody to the Client with each of the valuations sent pursuant to Clause 13 (Reporting) below.
12.3
Investments held in the Portfolio are registered in the name of the Prime Broker or their nominees.
12.4
The Portfolio’s investments may be held by the Prime Broker, their nominee or a Custodian collectively with other investments. The Prime Broker maintains electronic records of the Portfolio’s separate entitlement to investments so held. In the event of the Prime Broker’s default any shortfall in an investment so held may be shared pro-rata among all clients of the Prime Broker for whom that investment is held by or to the order of their nominee.
12.5
The Portfolio’s investments may also be recorded by physical documents of or evidencing title. The nominee maintains a register of such physical documents of or evidencing title to investments held in the Portfolio, recording the receipt and despatch of those documents by the nominee.
12.6
The Manager does not accept liability for default, including loss of investments, by any third party.
12.7
The Manager may not lend to a third party (or alienate way of collateral deposit) investments held in the Portfolio and money may not be borrowed on the Client’s behalf against the security of those investments.
12.8
The Manager, and any broker, investment manager or other agent employed by it, may hold a lien or right of retention or right to sell or security interest in the Portfolio’s investments in relation to any unpaid sum due to them via the Prime Broker.
12.9
Where it is necessary for the Portfolio’s investments to be held by a Custodian in custody outside the United Kingdom different settlement, legal and regulatory requirements, and different practices relating to the segregation of investments, may be applicable.
12.10
Dividends and other income arising from investments held in the Portfolio and received by the Prime Broker [or the nominee] on behalf of the Client are reinvested in the Portfolio.
12.11
Subject to Clause 12.13 below, voting or other rights attaching to investments within the Portfolio are exercisable by the solely Prime Broker at its own discretion.
12.12
In respect of securities which are held directly in an individual savings account, the obligation to arrange the following shall, if you so elect, be on the Prime Broker:
12.12.1
copies of the annual report and accounts and any other information issued to holders;
12.12.2
attending holders’ meetings; and
12.12.3
for the Client to vote.
12.13
For the avoidance of doubt, the Custodian shall hold the official books and records of the Portfolio and the Manager is not engaged to provide such official books and records nor to be responsible for any reconciliation of assets in relation to the Portfolio.
12.14
The Client shall not change its Custodian without giving the Manager reasonable prior written notice of its intention to do so together with the name and other relevant information which the Manager may require in respect of the new Custodian.
13. Reporting
13.1
The Manager shall provide to the Client bi-annual valuations of the Portfolio as of the 5th of April and the 5th of October (“the Valuation Dates”) in accordance with the rules of the FCA.
13.2
The valuations:
13.2.1
are based on the published closing bid market prices on the Valuation Dates. Where 5th April or 5th October are not reported (whether for public holiday or other reasons) the valuations are based upon the nearest preceding dealing day’s closing bid market prices;
13.2.2
are expressed in the currency of the Portfolio, the value of other currency securities and deposits being converted to that currency at the closing foreign exchange middle market conversion rates on the Valuation Dates. Where the conversion rates are not published on the Valuation Dates, the valuations will be based on the nearest preceding dealing day’s closing foreign exchange middle market conversion rates;
13.2.3
of fixed interest securities include interest paid or accrued up to and on the Valuation Dates;
13.2.4
of deposit funds include interest paid or accrued up to and on the most recent bank interest credit date prior to the Valuation Dates;
13.2.5
include dividends declared but not paid on the Valuation Dates;
13.2.6
include sums due from settlement proceeds but not credited to the Portfolio on the Valuation Dates;
13.2.7
include deductions of charges and relevant tax liabilities of brokers, investment Managers and advisors (other than those of the company) and life assurance companies;
13.2.8
include deductions of outstanding fees and interest due to the Manager;
13.2.9
exclude deductions of personal tax liabilities of the Client:
13.2.10
are sent to the Client by the Manager within six weeks of the Valuation Dates; and
13.2.11
a secure online viewing facility will also be provided to the Client to follow the Portfolio in real time;
13.3
In addition to the provisions of Clause 13 set out above, the following documentation shall accompany the valuations:
13.3.1
chedules of transactions carried out by the Prime Broker, contract notes to support such transactions and cash statements showing all sums received for disbursed from the Portfolio, including income receipts and payments and Portfolio fees paid during each half yearly period preceding the valuation date;
13.3.2
A comparison between the percentage change in the total value of the Portfolio with the percentage change in the movement of the FTSE. All Share Index over the immediately preceding half year prior to each Valuation Date unless a different benchmark is more appropriate. The benchmark will be confirmed in writing to the Client to the extent that it is not the FTSE All Share Index.
13.4
The predetermined threshold for losses incurred for a portfolio is when the client’s overall portfolio depreciates by 25% or more.
13.4.1
This must be reported to the client no later than the end of the business day in which the threshold is exceeded, or if the threshold is exceeded on a non-business day, the close of the next business day.
14. Conflict of Interest
14.1
The Manager and any Affiliate may effect transactions in which the Manager, any Affiliate, another Client of the Manager or of an Affiliate has, directly or indirectly, a material interest or a relationship of any description with another party, which involves or may involve a potential conflict with the Manager’s duty to the Client. The Manager will ensure that such transactions are effected on terms which are not materially less favourable to the Client than if the conflict or potential conflict had not existed. Any conflicts which the Manager is not able to manage effectively shall be promptly disclosed by the Manager to the Client. Neither the Manager nor any Affiliate shall be liable to account to the Client for any profit, or remuneration made or received from or by reason of such transactions or any connected transactions or to disclose the same or the identity of any other Client or counterparty involved in such transactions, nor will the Manager’s fee, unless otherwise provided, be abated.
14.2
The Manager will act as the agent of the Client and the Client will therefore be bound by the actions of the Manager taken on the Client’s behalf in accordance with the terms of this Agreement. Nevertheless, nothing in this Agreement, none of the services to be provided hereunder, nor any other matter shall:
14.2.1
oblige the Manager or any Affiliate to accept responsibilities more extensive than those set out in this Agreement; or
14.2.2
give rise to any fiduciary or equitable duties which would prevent or hinder the Manager or any Affiliate from either:
14.2.2.1
performing the Investment Management Service or other services pursuant to this Agreement; or
14.2.2.2
effecting transactions with or for the Client.
15. Representations and warranties
15.1
The Client represents, warrants and agrees, on the date this Agreement that:
15.1.1
it is duly organised and validly existing under the laws of its jurisdiction of incorporation (applicable to corporate clients only);
15.1.2
it has all necessary power and authority to execute, deliver and perform this Agreement and to enter into the transactions contemplated by this Agreement;
15.1.3
it has all necessary power and authority to authorise the Manager to negotiate, execute, deliver and perform any agreement in connection with the provision of services under this Agreement on its behalf and to perform its obligations under any such agreements and enter into the transactions contemplated by this Agreement;
15.1.4
neither its entry into this Agreement nor into any transaction contemplated by this Agreement will breach any law applicable to the Client;
15.1.5
any restrictions to which the Client is subject relating to this Agreement or any transaction contemplated by this Agreement are set out herein and the Manager shall be entitled to assume that no restrictions other than those contained in this Agreement apply;
15.1.6
it has read and understood the Risk Warning at Schedule 2 which provides a warning of certain risks associated with investments which may be held in the Portfolio or in respect of a particular investment strategy;
15.1.7
it is acting as principal with respect to the transactions contemplated under this Agreement and shall accordingly be liable as principal for all obligations under this Agreement;
15.1.8
It is the sole beneficial owner of all the assets in the Portfolio (or, where it is acting as trustee, it is acting on behalf of the beneficial owner) and that the assets are free from any lien, charge or other encumbrance or security interest;
15.1.9
It shall not, without the Manager’s prior written consent, dispose of, encumber or otherwise deal with any of the assets comprising the Portfolio nor permit any other person, including the Custodian, to do so;
15.1.10
It shall promptly provide to the Manager all information or documents that are reasonably necessary for the Manager to receive with a view to the proper discharge of its functions under this Agreement or which the Manager may reasonably request for such purpose or which is required by any competent authority; and
15.1.11
Information or documentation provided by the Client or its agents to the Manager pursuant to this Agreement is accurate, complete, up-to-date and not misleading in any respect and the Client has notified the Manager of all such information which is reasonably relevant to the performance of the Manager’s duties under this Agreement.
15.2
The Manager represents, warrants and agrees, on the date of this Agreement that:
15.2.1
It is authorised and regulated by the FCA in carrying out the business of managing investments and shall remain so authorised and regulated at all times during the term of this Agreement;
15.2.2
It is duly organised and validly existing under the laws of England and Wales; and
15.2.3
It has all necessary power and authority to execute, deliver and perform this Agreement.
16. Limitation of liability
16.1
The Manager shall be liable to the Client for any losses incurred by the Client only to the extent that such losses arise under the law of contract and are the direct result of any act or omission taken or omitted by the Manager or an Affiliate during the term of, and under, this Agreement which constitutes negligence, wilful default or fraud of the manager, such Affiliate or their directors, officers or employees in providing any of the services under this Agreement. The Manager shall not otherwise be liable for any other losses suffered by the Client including losses arising from:
16.1.1
negligence, wilful default, fraud or insolvency of any other person;
16.1.2
the Manager carrying out or relying on any instructions or on any information provided or made available to the Manager by the Client, the Custodian, any agent of the Client or any person appointed by the Manager under Clause 9;
16.1.3
any delays due to market conditions or changes in market conditions; or
16.1.4
any delayed receipt, non-receipt, loss or corruption of any information contained in email or for any breach of confidentiality resulting from email communication or any consequential loss arising from either of the foregoing.
16.2
The Manager shall not be responsible for any losses incurred after the Termination Date under this Agreement unless and to the extent that the act or omission causing such Losses can be evidenced to have occurred prior to the Termination Date under this Agreement.
16.3
Nothing in this Agreement shall exclude or restrict any duty or liability which the Manager may have towards the Client under FSMA or the FCA Rules or, where relevant, the Pensions Act 1995.
17. Indemnification
17.1
The Client shall indemnify the Manager or any Affiliate and their directors, officers and employees against any and all losses paid, suffered or incurred by the Manager or the Affiliate or their directors, officers or employees, directly or indirectly arising as a result of:
17.1.1
the performance by the Manager or any Affiliate of their duties under this Agreement, or
17.1.2
carrying out or relying on any instructions and any information provided or made available to the Manager by the Client, its Custodian or any other agent of the Client,
except to the extent that such losses result directly from the negligence, wilful default or fraud of the Manager or any Affiliate or their directors, officers or employees in providing the services under this Agreement.
17.2
Any indemnity given to the Manager or any Affiliate under this Agreement is in addition to, and without prejudice to, any indemnity allowed to the Manager or any Affiliate under applicable law.
18. Tax and accounting
18.1
The Client shall remain responsible for the management of its affairs for tax and accounting purposes. The Manager shall not provide the Client with tax advice or accounting advice or services. Subject to any specific requirements as agreed between the Parties, the Manager shall have no responsibility to take into account the Client’s tax status in providing the services under this Agreement.
18.2
The Client shall promptly provide to the Manager all information or documents that are requested by any tax authority of the Manager in respect of the Client.
18.3
Unless otherwise agreed between the Parties, the Manager is under no obligation to report to the Client on the tax consequences of buying or selling assets in the Portfolio.
19. Instructions
19.1
The Client may, from time to time, give instructions to the Manager directing the Manager to take, or refrain from taking, particular actions under this Agreement.
19.2
Any direction given to the Manager seeking to amend or vary the terms of this Agreement shall not be deemed to be an instruction and shall be subject to the provisions of Clause 32.
19.3
The Manager shall be entitled to rely upon any instruction from an authorised person, or from such other person where the Manager reasonably believes the instruction to be from an authorised person, whether or not the authority of such person is then effective and without further enquiry of the Client in relation to the genuineness, authority or identity of the authorised person.
19.4
The Manager shall acknowledge instructions received from the Client by acting on them unless the Client is promptly advised that the Manager believes:
19.4.1
such instructions to be conflicting or ambiguous;
19.4.2
such instruction was not given by an authorised person;
19.4.3
such action may not be practicable or might result in a breach of this Agreement or any applicable law.
20. Litigation
The Manager shall have no authority or responsibility to take any action with regard to any litigation, including, without limitation, to file proofs of claim or other documents, or to investigate, initiate or monitor any litigation.
21. Termination
21.1
This Agreement shall continue until terminated in accordance with this Clause 21. This Agreement shall remain in full force and effect up to the Termination Date.
21.2
If at any time a termination event with respect to a Party has occurred, the other Party may, by written notice specifying the relevant termination event, designate a Termination Date not earlier than the day such notice is effective.
21.3
Both parties may at any time terminate this Agreement on 10 Business Days’ written notice to the other Party. The Termination Date shall be the first Business Day which falls 10 Business Days after the date on which written notice given to the other Party was effective or such later date as specified in the notice.
21.4
Unless otherwise agreed between the Parties, in circumstances where the Manager terminates this Agreement pursuant to clause 21.3 the Manager shall continue to supply the Investment Management Services up until the Termination Date and shall co-operate with and take such steps as the Client may reasonably require in order to effect the orderly termination of this Agreement and to transfer the Portfolio or an amount equal to the Portfolio to or at the direction of the Client.
21.5
Unless otherwise agreed between the Parties, in circumstances where the Client terminates this Agreement pursuant to clause 21.4, the Client agrees and acknowledges that with effect from the Termination Date, the following terms shall apply:
21.5.1
the Manager shall cease to provide the investment management service and in particular:
21.5.1.1
the Manager will not action any new purchases of assets in relation to the Portfolio provided that transactions already effected but awaiting settlement will be unaffected and shall settle as normal;
21.5.1.2
the Manager will not action any new sale transactions in relation to the Portfolio except pursuant to specific Instructions from the Client;
21.5.1.3
the Manager shall not enter into new foreign exchange transactions (including renewing or so called “rolling-over” existing foreign exchange transactions) or derivative transactions in relation to the Portfolio except foreign exchange transactions required to cover any purchases effected prior to the Termination Date;
21.5.1.4
the Manager shall not re-invest income, dividends, proceeds of sale or other cash balances and that the cash limits may be exceeded as a result; and
21.5.1.5
the Manager will undertake any corporate action decisions which it reasonably believes necessary.
21.5.2
the Manager will no longer be responsible for achieving the investment objectives and the Client acknowledges that the performance of the Portfolio may fall short of the performance otherwise achievable for an on-going Portfolio;
21.5.3
the performance measurement for the Portfolio shall end with effect from the Termination Date or such date as is agreed between the Parties;
21.5.4
the Manager will not be responsible for undertaking any transactions affecting the Portfolio intended to facilitate reorganisation of the Portfolio by the Client or any other person except under separate written agreement between the Client and the Manager; and
21.5.5
the Manager may direct the Custodian to retain or realise any investments of the Portfolio as may be required to settle transactions already initiated or to pay any outstanding liabilities of the Client in either case without prior notice to the Client. If there is a dispute as to the payment of fees to the Manager, the Client may require the disputed amount to be held in an escrow account pending resolution of the dispute.
21.6
The Manager will continue to provide periodic statements pursuant to Clause 13 (Reporting) up to the Termination Date.
21.7
The Client shall pay:
21.7.1
the fees and expenses of the Manager due up to the Termination Date; and
21.7.2
any additional reasonable expenses necessarily incurred by the Manager in terminating the Agreement, and the Client shall bear any losses necessarily realised in settling or concluding outstanding obligations.
21.8
Termination of this Agreement shall not affect accrued rights, existing commitments or any contractual provision intended to survive termination.
22. Confidentiality
22.1
In providing its services under this Agreement, neither the Manager nor its Affiliates shall be obliged to disclose or to take into consideration (or to require any third party to disclose or take into consideration) any information:
22.1.1
the disclosure or use of which might breach any prohibition, duty or confidence to any other person or arising under any applicable law; or
22.1.2
which comes to the notice of an employee, officer or agent of the Manager or of an Affiliate, but properly does not come to the actual notice of an individual managing the Portfolio; or
22.1.3
relating to the nature or extent of any interest the Manager or any Affiliate has in any investments.
22.2
Each Party shall treat Confidential Information as confidential and shall not disclose such information except if:
22.2.1
it is required to do under applicable law;
22.2.2
it is so requested by regulatory or fiscal authorities or a court or tribunal of competent jurisdiction;
22.2.3
it is disclosed in confidence to its advisers, auditors or insurers where reasonably necessary for the performance of their professional services; or
22.2.4
it is disclosed in confidence to its industry body for the purpose of compiling and publishing industry statistics or analysis.
22.3
Notwithstanding Clause 22.2, the Manager may disclose in confidence any Confidential Information to any person (including, without limitation, Affiliates or any other persons) as may be reasonably required in order to perform the services and to enforce its obligations and rights under this Agreement. The Manager may disclose such facts about the appointment in a press release as the Manager and the Client may agree.
22.4
Confidential Information shall remain confidential for a period of two (2) years from the Termination Date of this Agreement.
22.5
The Parties agree that damages may not be an adequate remedy for any breach of this Clause 22 and, accordingly, each shall be entitled (but not limited) to seek injunctive or other equitable relief restraining the other from breaching this Clause.
23. Data Protection
23.1
The Manager will act as data controller (and in certain circumstances, data processor) within the meaning of the General Data Protection Regulation (GDPR) in relation to any person data supplied to it in connection with this Agreement. Each Party undertakes to comply with its obligations under the regulation in relation to such personal data.
23.2
The Client hereby acknowledges and agrees that the Manager, its Affiliates and agents may be processing and using personal data given by or on behalf of the Client under this Agreement for the provision of services to the Client, which may include the transfer of such data out of the European Economic Area. The Client agrees that such data may also be used by the Manager and its agents and Affiliates to update Client records, to advise the Client of other products and services unless the Client has indicated otherwise and for such other purposes as the Manager may notify from time to time. The Client undertakes to supply personal data to the Manager in accordance with the provisions of the General Data Protection Regulation and shall provide the Manager with reasonable cooperation and assistance in ensuring that the processing and use of personal data described in this Clause 23 is conducted in accordance with the regulation.
24. Telephone recording
Subject to compliance with applicable law, either Party may record telephone conversations with the other.
25. Force majeure
No Party to this Agreement shall be liable for any failure or delay in performing any of its obligations under or pursuant to this Agreement, and any such failure or delay in performing its obligations will not constitute a breach of this Agreement, if and to the extent that such failure or delay is due to an event of Force majeure; including without limitation, acts of God, acts or regulations of government or other authorities, restrictions on transfer or conversion, requisitions, involuntary transfers, war, fire, flood, explosions, civil commotion, strikes or other industrial disputes, power failure, failure of telecommunications lines, connection or equipment, any failure or defects in any hardware or software owned or supplied by third parties, or any failure by a broker, exchange or clearing house for any reason to perform its obligations.
26. Notices
Any notice in respect of this Agreement may be given in any manner set forth below to the address, facsimile number and/or email provided by the Parties, or to such other address as shall be notified in accordance with this Clause 26 by that Party to the other Party from time to time and will be deemed given as indicated:
26.1
if in writing and delivered in person or by courier, on the date it is delivered;
26.2
if sent by facsimile transmission, on the date that transmission is received (it is agreed that the burden of proving receipt will be on the sender and will be met by a transmission report generated by the sender’s facsimile machine);
26.3
if sent by registered or certified mail or airmail or equivalent, on the date that mail is delivered; and
26.4
if sent by electronic messaging system including electronic mail, on the date that electronic message is acknowledged by the recipient, unless the date of delivery or that receipt, as applicable, is not a Business Day or that notice is delivered, received or acknowledged, as applicable, after 5pm local time in London on a Business Day, in which case that notice shall be deemed given and effective on the first following day that is a Business Day.
27. Complaints
All formal complaints by the Client relating to the services provided by the Manager under this Agreement should in the first instance be made in writing to the Compliance Director of the Manager. A copy of the Manager’s complaints handling procedure is available on request and will otherwise be provided in accordance with the FCA Rules.
In addition, the Client, categorised by the Manager as Retail, is eligible complainant with respect to the Financial Ombudsman Services (‘FOS’) and has full access to it. For more information on the Client’s eligibility to access FOS, the Client is able to refer to the following link http://www.financial-ombudsman.org.uk/.
28. Compensation
The Client may be entitled to compensation from the Financial Services Compensation Scheme if the Manager does not meet its obligations. This depends on the type of business and the circumstances of the claim. The Client’s entitlement to be paid any amount by the Financial Services Compensation Scheme depends on the rules of the scheme. Further information about compensation arrangements is available from the Financial Services Compensation Scheme on http://www.fscs.org.uk/.
29. Assignment
29.1
ve as provided in this Clause 29, neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party.
29.2
The Client agrees that the Manager may assign and/or sub-contract its rights under this Agreement to one or more of its Affiliates by giving the Client written notice which shall specify a date upon which the assignment shall become effective.
30. Entire agreement, waivers and remedies
30.1
This Agreement, including its Schedules (as amended from time to time) and any current instructions constitutes the entire agreement between the Manager and the Client with respect to services relating to the Portfolio. This Agreement supersedes all prior understandings, arrangements, agreements, representations, proposals or communications between the Parties, whether written or oral. Neither Party has relied on any statements or representations during the negotiations other than those expressly incorporated in this Agreement.
30.2
No failure on the part of a Party to exercise, nor delay by it in exercising, any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise or any right or remedy preclude any other further exercise of that right or remedy or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
31. Illegality
The illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of this Agreement nor the legality, validity or enforceability of any other provision.
32. Amendment
This Agreement, including the Schedules, may not be amended without the prior written agreement of the Parties.
33. Rights of third parties
A person who is not a Party to this Agreement (other than a successor in title, permitted assignee or Indemnified Persons) has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
34. Counterparts
This Agreement may be executed in any number of counterparts, each of which is an original but all of which together constitute one and the same instrument.
35. Governing law and jurisdiction
35.1
This Agreement is governed by, and shall be construed in accordance with, the laws of England and Wales.
35.2
The Parties agree that the English courts shall have exclusive jurisdiction to determine any proceedings. Each Party irrevocably submits to the exclusive jurisdiction of the English courts in respect of such proceedings and waives any objection to any such proceedings in such courts on the grounds of venue, waives any claim that proceedings brought in such courts have been brought in an inappropriate or inconvenient forum and further waives the right to object, with respect to such proceedings, that such courts do not have any jurisdiction over such Party.
Schedule 1 Fees
The Client will provide the Manager with funds to cover transactions carried out on behalf of the Client as they become due and pay the Manager’s fees as set out below.
Initial Charge:
0.50% of fund value initial one-off fee. This is charged upfront and only once.
Annual Management Charge:
1.0% Annual Management Charge (AMC) charged to the client on the monthly basis on the ongoing basis
Transaction charges:
0.50% of transaction value on all opening trades.
0.50% of transaction value on all closing trades.
Example of transaction fee; £5,000 buy or sell position would cost you £25.00
Performance fee:
The performance fee is a charge of 20% calculated on a semi-annual basis and applied on the net profit added to the account.
The above fee is subject to the standard “high-water mark”, meaning that you will only be charged if your investment has exceeded the highest previous value.
For example:
Month 1: net trading return = £1000
Performance fee of £200 charged.
New high-water mark is £100,800
Month 2: net trading return = -£300
No performance fee charge
High-water mark remains at £100,800.
The fixed fees, together with any applicable per transaction taxes or any other fees and charges, are deducted by the Manager from the Portfolio when the transactions to which they relate are settled. The amounts of such deductions are notified to the Client with the valuations described in Clause 13 (Reporting) of the Agreement. The Manager may at its sole discretion in any case waive a fee payable in accordance with this Schedule.
The Company fees described in this Clause 6 are cumulative and are supplementary to any fees or charges which are payable to the Company for services provided other than pursuant to this Agreement. The Company fees herein described are not cumulative to, and will be abated by, any broker’s charges incurred outside the management of the Portfolio.
Please note, there may be additional charges applied by the custodian.
Schedule 2 Notices
Asset allocations indicated will vary depending on the tactical position of the portfolios at any time given prevailing market conditions. The views expressed in this factsheet are those of Invest N Grow a trading name of Artless Wealth Ltd, is authorised and regulated by the Financial Conduct Authority, FRN: 925231 Registered Office: Office 56, The Weston Business Centre, Hawkins Road, Colchester, Essex, CO2 8JX. Registered in England. Registered Number: 12402895.
While Invest N Grow uses reasonable efforts to obtain information from sources which it believes to be reliable, it makes no representation that the information or opinions contained in this document are accurate, reliable, or complete and will not be liable for any errors, nor for any actions taken in reliance thereon.
Such information and opinions are provided for the information of Invest N Grow clients only and are subject to change without notice. We expect readers to rely, therefore, on their personal views on the subject when reading the opinions expressed above and as with elsewhere in this factsheet contact their financial adviser before taking any action.
Nothing in this document should be construed as an offer or solicitation to acquire or dispose of any investment or to engage in any other transaction. If, because of reading this factsheet, you are in any doubt as to the suitability of any recommendation contained in this document, you should consult your financial adviser or the person at Invest N Grow with whom you usually deal. The performance of individual portfolios may differ due asset choice, timing differences in implementing investment decisions, the impact of charges, individual parameters, and taxation.
The value of investments may fall as well as rise. The income from them may fluctuate and may not be guaranteed. Invest N Grow is not a tax adviser. If you have any queries as to the tax implications of any investment you should seek independent professional advice.