Terms & Conditions

TERMS & CONDITIONS

BACKGROUND

1. The Client wishes to appoint ZCL as manager in relation to investments held by it in accounts with its custodian bank;
2. ZCL agrees to such appointment on the terms and subject to the conditions of this Agreement.

TERMS

1. Appointment

1.1  The Client hereby appoints ZCL to manage the Accounts in pursuit of the agreed investment objective, approach and subject to the investment restrictions agreed in writing, until such appointment is terminated pursuant to the terms of this Agreement.

1.2  For the avoidance of doubt, if the Client is required to enter into a power of attorney (POA) with a Custodian in relation to each or any of the Accounts and in the event of a conflict between this Agreement and the POA, the terms of this Agreement will take precedence over the POA.

2. Effective Date

This Agreement shall come into full force and effect on the Effective Date and will continue until such time as it is terminated in accordance with Clause 24

3. Client categorisation

3.1  For the purposes of the FCA Rules and based on information obtained in respect of the Client, ZCL has categorised the Client as a professional client in relation to the services provided under this Agreement. It is the Client’s sole responsibility to keep ZCL informed about any change to the Client’s circumstances which could affect ZCL’s categorisation of the Client as a professional client.

3.2  The Client acknowledges that it may request that ZCL considers its re-categorisation as a retail client but it is not ZCL’s policy to accept requests to be treated as a retail client for any service provided by it under this Agreement.

4. Treatment of Client Money and or Assets held at Custodian

4.1 Under the terms of this Agreement and as provided for by the applicable section of the FCA Client Money Sourcebook (“CASS 8”) the Client agrees that ZCL has the means to:

i)  Instruct the movement / transfer of Client Money and Assets held in the accounts of the Client at the

Custodian for the purposes of settling a transaction undertaken by ZCL;

ii)  For the avoidance of doubt under the terms of this agreement the Client consents to ZCL holding such

authority on their behalf.

5. Standard of Care

ZCL shall perform its obligations under this Agreement in accordance with the Standard of Care.

6. Delegation and use of third parties

6.1  The Client hereby consents to ZCL appointing or retaining any appropriately regulated Affiliate of ZCL to perform any aspect of the Services that amounts to investment decision-making in respect of the Accounts.

6.2  ZCL may, with the prior written consent of the Client, appoint or retain any person which is not an Affiliate of ZCL to perform any aspect of the Services that amounts to investment decision-making in respect of the Accounts.

6.3  Unless otherwise agreed with the Client and subject to Clause 10.2, ZCL shall be responsible for the fees and charges of any person appointed or retained under this Clause 6.

7. Dealing and use of Counterparties

7.1  Where applicable, ZCL may execute or effect transactions through the Custodian, with any Counterparty and on such trading venue as it considers appropriate in its absolute discretion.

7.2  If the Custodian or any Counterparty fails to deliver any necessary documents or to complete any transaction, ZCL shall take such reasonable steps on behalf of the Client as it shall determine to rectify such failure or to obtain compensation in lieu thereof provided that such steps do not constitute Litigation in which case the provisions of Clause 23 shall apply. All resulting reasonable costs and expenses properly incurred by ZCL shall be paid by the Client.

7.3 The Client acknowledges that ZCL, when dealing on behalf of the Client with the Custodian or certain Counterparties, may be required to act in accordance with certain requirements, including any relevant rules and regulations of the Custodian or such Counterparties, and accepts any losses that may result from ZCL so acting.

8. Order execution

8.1  Subject to Clause 8.3, ZCL will at all times act in the best interests of the Client.

8.2  ZCL may aggregate orders on behalf of the Client with those of its other clients and clients of its Affiliates. ZCLwill 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.

8.3  The Client acknowledges that certain information about transactions ZCL wishes to and does enter into on the Client’s behalf may be made public and that ZCL may be required to report the details of certain transactions tothe FCA, in some cases, via third parties, in accordance with applicable law.

9. Research

ZCL does not receive research material or services in return for direct payments from ZCL.

10. Fees, costs and charges

10.1  The Client shall pay ZCL the fees as set out in the Commercial Terms. The fees shall accrue from the Effective Date unless the Parties agree otherwise.

10.2  In addition to ZCL’s fees, the Client will be liable for:

i)  any costs and expenses associated with assistance with Litigation as detailed in Clause 23; and

ii)  any costs related to the termination of this Agreement payable in accordance with Clause 24.

10.3  The fees set out in the Commercial Terms are exclusive of any VAT or similar taxes which, if payable, shall be payable in addition by the Client at the same time as the fees, and after the provision of ZCL’s fee invoice.

10.4  The Parties acknowledge and agree that ZCL’s fees are based on the current understanding of the VAT treatment of the fees. In the event of any change in the VAT treatment of the fees, both Parties reserve the right to negotiate a change in the fee basis to reflect the revised circumstances.

10.5  Any fees for the provision of custodial services in relation to the Accounts and any banking charges in relation to the Accounts shall be charged separately by the Custodian or bank and shall be for the sole account of the Client and will not be included in the fees set out in the Commercial Terms.

10.6  ZCL shall separately provide information on costs and associated charges to the Client including, but not limited to, all information required by MiFID II to be provided in such disclosures.

11. Custody of assets

11.1  ZCL shall not provide custody services to the Client.

11.2  All assets forming part of the Accounts shall be held by the Custodian pursuant to a separate agreement betweenthe Client and the Custodian. ZCL shall at no time hold any assets, financial instruments or cash balances 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.

11.3  The Client shall instruct the Custodian to:

i)  act in accordance with instructions from ZCL pursuant to this Agreement;

ii)  provide ZCL with access to electronic systems and copies of periodic statements;

iii)  give ZCL (and/or such person as ZCL may direct) timely notice of any voting or other rights with respectto financial instruments forming part of the Accounts as soon as possible upon becoming aware of anysuch rights;

iv)  inform ZCL as soon as practicable of any additions or other credits and withdrawals or other debits to anyaccount containing financial instruments and or cash balances forming part of the Accounts;

v)  pay the amount of any fees, costs and expenses payable under this Agreement from the Accounts inaccordance with the payment instructions notified by ZCL to the Custodian; and

vi)  comply with the directions of ZCL.

11.4  For the avoidance of doubt, the Custodian shall hold all records for the Accounts and ZCL is not engaged to provide such records nor to be responsible for any reconciliation of financial instruments and or cash balances in relation to the Accounts.

11.5  The Client shall not change its Custodian without giving ZCL reasonable prior written notice of its intention to do so together with the name and other relevant information which ZCL may require in respect of the new Custodian.

11.6 Where ZCL elects to exercise or procure the exercise of voting rights or other rights, it does so exclusively on the basis of the records and positions held by the Custodian and the Client acknowledges that ZCL shall be entitled to rely on the information supplied by any other person acting for the Custodian or appointed by the Client and shall not be required to investigate or reconcile any discrepancies between the information held by it and the information held by the Custodian.

12. Cash

The Client shall remain solely responsible for the selection and use of any credit institution or other entity with which cash is deposited by its clients and that such monies are held in accordance with any statutory client money protection.

13. Borrowing

Unless permitted in the Investment Objectives, ZCL may not commit the Client to any borrowing. For the purposes of this agreement any transactions undertaken by ZCL in financial instruments and or OTC products on a leveraged or geared basis shall not be deemed as borrowing.

14. Stock-lending and repo

Unless otherwise agreed in the investment Objectives, ZCL shall not undertake any stock lending, stock borrowing, repurchase or reverse repurchase arrangements in relation to assets in the Accounts.

15. Records, valuations, confirmations and periodic statements

15.1  ZCL will keep or cause to be kept daily records of investments, sales, disbursements and other transactions carried out by ZCL on behalf of the Client under this Agreement in accordance with applicable law.

15.2  ZCL shall provide the Client with reports in relation to the performance of the Accounts as agreed with the Client in the Investment Objectives. The details provided to the Client in relation to the activities and performance of the Accounts shall include all information required by MiFID II to be provided in such statements.

15.3  Without prejudice to Clause 15.1, ZCL will maintain its own records of the Accounts and transactions relating to the Accounts to enable it to assess at any date, without undue delay, their nature and value.

15.4  ZCL may rely on an external data provider to supply information or data of any kind. ZCL accepts no responsibility whatsoever (whether in contract, tort or otherwise, except to the extent that any such responsibility cannot be excluded by law) for any Losses suffered as a consequence of the external data provider supplying inaccurate information or data or due to the input of manual prices.

15.5  ZCL will give the Client and its auditors all reasonable opportunity, during business hours of any Business Day upon being given reasonable notice, to examine such part of the books and records (or an extract) of ZCL that relate directly to the Accounts including, without limitation, such information concerning the Client’s corporate and regulatory status.

15.6  Unless otherwise agreed, ZCL will not provide information about executed transactions on a transaction-by- transaction basis.

16. Voting

16.1  Unless the Client instructs ZCL to the contrary in writing, ZCL is authorised to issue proxy voting instructions or to vote on a show of hands at a meeting in relation to any relevant assets or financial instruments held or that were held in the Accounts, and to execute and bind the Client in actions (including corporate actions), waivers, consents, covenants and indemnifications related to such voting proxies.

16.2  The Client acknowledges and agrees that ZCL:

i)  may establish guidelines for the exercise of voting of proxies or other rights and may employ the servicesof a proxy voting service to exercise proxies in accordance with ZCL’s guidelines;

ii)  may, in its discretion, elect not to exercise or procure the exercise of any voting or other rights and, except as may be explicitly provided by applicable law, ZCL shall not incur any liability to the Client by reason of any exercise of, or failure to exercise, any such discretion and shall not incur any liability for any failurearising from an act or omission of a person other than ZCL; and

iii)  may not be able to verify if the Custodian or any proxy voting agent has received and acted upon itsvoting instructions and may not be able to audit the onward transmission of those instructions to any party.

17. Conflicts of interest

17.1 ZCL and any Affiliate may effect transactions in which ZCL, any Affiliate, another client of ZCL 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 ZCL’s duty to the Client. ZCL 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 ZCL is not able to prevent or manage effectively shall be promptly disclosed by ZCL to the Client. Except as required by the FCA Rules, neither ZCL nor any Affiliate shall be liable to account to the Client for any profit, commission 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 ZCL’s fees, unless otherwise provided, be abated.

17.2 ZCL will act as the agent of the Client and the Client will therefore be bound by the actions of ZCL 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 under it, nor any other matter shall:

i)  oblige ZCL or any Affiliate to accept responsibilities more extensive than those set out in this Agreement;or

ii)  give rise to any fiduciary or equitable duties which would prevent or hinder ZCL or any Affiliate fromeither: performing the Service or other services pursuant to this Agreement; oreffecting transactions with or for the Client.

 

18. Representations and warranties

18.1  The Client represents, warrants and agrees, on the date of this Agreement and on a continuing basis that:

i)  it is duly organised and validly existing under the laws of its jurisdiction of incorporation;

ii)  it has all necessary power and authority to execute, deliver and perform this Agreement and to enter intothe transactions contemplated by this Agreement;

iii)  it has all necessary power and authority to authorize ZCL to negotiate, execute, deliver and perform anyagreement 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;

iv)  neither its entry into this Agreement nor into any transaction contemplated by this Agreement will breach any law or regulation applicable to the Client;

v)  any restrictions to which it is subject relating to this Agreement or any transaction contemplated by this Agreement and the level of risk to be reflected in ZCL’s exercise of discretion (whether as a matter of legislation, its governing documentation or otherwise), including its ability to bear losses and its risk tolerance, are set out in the Guidelines and ZCL shall be entitled to assume that no restrictions other than those contained in the Guidelines apply;

vi)  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;

vii)  it is the sole beneficial owners of all the assets in the Accounts and that, to the best of its knowledge, information and belief, the assets are free from any lien, charge or other encumbrance or security interest;

viii)  it shall promptly provide to ZCL, and update as required, all information or documents that are reasonably necessary for ZCL to receive (including a valid Legal Entity Identifier) with a view to the proper discharge of its functions under this Agreement or which ZCL may reasonably request for such purpose or which is required by any competent authority; and

ix)  information or documentation provided by the Client or its agents to ZCL pursuant to this Agreement (including all information provided in relation to its clients) is accurate, complete, up-to-date and not misleading in any respect and the Client has notified ZCL of all such information which is reasonably relevant to the performance of ZCL’s duties under this Agreement.

x)  it will not impose any restriction or limitation as to transaction(s) in the financial instruments as listed in Clause 5 above.

 

18.2  ZCL represents, warrants and agrees, on the date of this Agreement and on a continuing basis that:

i)  it is authorised and regulated by the FCA and holds FSMA PART IV permissions, which include amongstothers, permission to manage investments;

ii)  it is duly organised and validly existing under the laws of England and Wales;

iii)  neither its entry into this Agreement nor into any transaction contemplated by this Agreement will breachany law or regulation applicable to ZCL; and

iv)  it has all necessary power and authority to execute, deliver and perform this Agreement.

 

18.3  Save as expressly provided in this Agreement, no other representation or warranty, express or implied, is made by either Party. Each Party shall promptly notify the other Party if any representation ceases to be true, accurate or complete in any material respect.

19. Liability

19.1 ZCL 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 ZCL or a Delegate during the term of, and under, this Agreement which constitutes gross negligence, wilful default or fraud of ZCL, such Delegate or their directors, officers or employees in providing any of the services under this Agreement. Without prejudice to Clause 19.4, ZCL shall not otherwise be liable for any other Losses suffered by the Client including Losses arising from:

i)  ZCL carrying out or relying on any Instructions or on any information provided or made available to ZCL by the Client, the Custodian, any agent of the Client or any person appointed or retained by ZCL under Clause 7;

ii)  any delays due to market conditions or changes in market conditions;

iii)  any delayed receipt, non-receipt, loss or corruption of any information contained in any electroniccommunication or for any breach of confidentiality resulting from email communication or anyconsequential loss arising from either of the foregoing; or

iv)  acts or omissions (including negligence, wilful default, fraud or insolvency) of any other person (includingCounterparties, the Custodian and external data providers), unless otherwise specified in this Agreement.

19.2  Without prejudice to Clause 19.4, ZCL shall not be liable in any circumstances for any Losses that constitute indirect, special or consequential loss, loss of profits, loss of savings, pure economic loss, loss of opportunity, lossof goodwill or loss of reputation in connection with or arising out of this Agreement.

19.3  ZCL 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 theTermination Date under this Agreement.

19.4  Nothing in this Agreement shall exclude or restrict any duty or liability which ZCL may have to the Client underFSMA or the FCA Rules.

20. Indemnification

20.1  The Client indemnifies, without limitation in value or tenure, ZCL and any Delegate and their directors, officers and employees against any and all Losses paid, suffered or incurred by ZCL or the Delegate or their directors, officers or employees, directly or indirectly arising as a result of:

i)  the performance by ZCL or any Delegate of their duties under this Agreement; or

ii)  carrying out or relying on any Instructions and any information provided or made available to ZCL by the Client, the Counterparty, the Custodian or any other agent of the Client or the Custodian, except to the extent that such Losses result directly from the negligence, wilful default or fraud of ZCL or any Delegate or their directors, officers or employees in providing the services under this Agreement.

20.2  Any indemnity given to ZCL or any Delegate under this Agreement is in addition to, and without prejudice to, any indemnity allowed to ZCL or any Delegate under applicable law.

21. Tax and accounting

21.1  The Client shall remain responsible for the management of its affairs for tax and accounting purposes. ZCL shall not provide the Client with tax advice or accounting advice or services. Subject to any specific requirements set out in the Guidelines, ZCL shall have no responsibility to take into account the Client’s tax status in providing the services under this Agreement.

21.2  The Client shall promptly provide to ZCL all information or documents that are requested by any tax authority of ZCL in respect of the Client.

21.3  ZCL is under no obligation to report to the Client on the tax consequences of buying or selling assets in the Accounts.

22. Instructions

22.1  The Client may, from time to time, give Instructions to ZCL directing ZCL to take, or refrain from taking, particular actions under this Agreement.

22.2  Any direction given to ZCL 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 34.

22.3  ZCL shall be entitled to rely upon any Instruction from an Authorised Person, or from such other person where ZCL 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.

22.4  ZCL shall acknowledge Instructions received from the Client by acting on them unless the Client is promptly advised that ZCL believes:

i)  such Instructions to be conflicting or ambiguous;

ii)  such Instruction was not given by an Authorised Person; or

iii)  such action may not be practicable or might result in a breach of this Agreement or any applicable law orregulation.

22.5  ZCL shall not be obliged to give or make any other acknowledgement of Instructions.

23. Litigation assistance

23.1  ZCL shall have no authority or responsibility to take any action in the name of or on behalf of the Client with regard to any Litigation, including, without limitation, to file proofs of claim or other documents, or to investigate, initiate, join, monitor or settle any Litigation.

23.2  The Client shall be solely responsible for:

i) keeping itself informed of any Litigation in which it may have a claim or for arranging for the Custodian oranother third party to do so; and
ii) investigating, initiating, joining, monitoring and settling any such Litigation.

23.3  Notwithstanding the foregoing, ZCL may, at the reasonable request of the Client, agree to disclose information held by ZCL directly relevant to such Litigation, subject to any duty of confidentiality owed to any third party by ZCL and provided that ZCL shall be fully indemnified to its reasonable satisfaction for all Losses that may be incurred or suffered by ZCL in connection with such disclosure.

24. Termination

24.1  This Agreement shall continue until terminated in accordance
with this Clause 24.

24.2  Either Party may at any time terminate this Agreement on giving to the other no less than 20 Business Days’written notice.

24.3  Without affecting any other right or remedy available to it, either Party may terminate this Agreement withimmediate effect by giving written notice to the defaulting party (Defaulting Party) if:

i)  the Defaulting Party fails to pay or instruct payment of any amount due under this Agreement on the due date for payment and remains in default not less than 60 days after being notified in writing to make suchpayment;

ii)  the Defaulting Party commits a material breach of any term of this Agreement which breach isirremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days afterbeing notified in writing to do so;

iii)  the Defaulting Party repeatedly breaches any of the terms of this agreement in such a manner as toreasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to giveeffect to the terms of this Agreement;

iv)  the Defaulting Party is affected by Force Majeure which persists for 10 calendar days;

v)  the Defaulting Party ceases to have the necessary regulatory authorisation or permission to carry on itsbusiness under this Agreement;

vi)  the Defaulting Party conducts itself in such a way as to bring, or in the other party’s reasonable opinionrisks bringing, the other party’s reputation into disrepute;

vii)  the Defaulting Party is required by applicable law or by any competent authority to terminate thisAgreement;

viii)  the Defaulting Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debtsas they fall due or admits inability to pay its debts or is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;

ix)  a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Defaulting Party other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or the solvent reconstruction of the Defaulting Party; or

x)  the Defaulting Party suspends or ceases, or threatens to suspend or cease, carrying on all or substantial part of its business.

24.4  The date on which this Agreement will terminate (Termination Date) shall be, save to the extent that the Parties agree otherwise in writing:-

i)  in the case of a termination notice given pursuant to Clause 24.2, the close of business on the Business Day which falls on the 20th Business Day following the date on which written notice is given to the other Party;

ii)  in the case of a termination notice given pursuant to Clause 24.3, be the close of business on the Business Day on which the termination notice is deemed to have been served pursuant to Clause 30.

24.5  Unless otherwise agreed between the Parties, in circumstances where either Party terminates this Agreement pursuant to Clauses 24.2 or 24.3, ZCL shall continue to supply the Services up until the Termination Date and shall cooperate with and take such steps as the Client may reasonably require in order to effect the orderly termination of Services and to transfer the management of the Accounts to or at the direction of the Client.

24.6  For the avoidance of doubt, however, during the period up until the Termination Date, ZCL will not, save pursuant to specific Instructions given to it in writing by the Client:-

i)  be obliged to effect any new purchases of assets in relation to the Accounts provided that transactionsalready effected but awaiting settlement will be unaffected and shall settle as normal;

ii)  effect any new sale transactions in relation to the Accounts;

iii) re-invest income, dividends, proceeds of sale or other cash balances; and

24.7  Notwithstanding Clause 24.6, during the period up until the Termination Date, ZCL will:-

i)  undertake any corporate action decisions which it reasonably believes necessary;

ii)  ZCL will no longer be responsible for compliance with the Guidelines and the Client acknowledges that the performance of the Accounts may fall short of the performance otherwise achievable for an on-goingAccounts;

iii)  the performance measurement for the Accounts shall end with effect from the Cessation Date;

iv)  ZCL will continue to vote all proxies in accordance with its proxy voting policy;

v)  ZCL will not be responsible for undertaking any transactions affecting the Accounts intended to facilitatere-organisation of the Accounts by the Client or any other person except under separate writtenagreement between the Client and ZCL; and

24.8  ZCL may direct the Counterparty and/or Custodian to retain or realise any investments of the Accounts as maybe 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 ZCL, the Client may require the disputed amount to be held in a third-party escrow account pending resolution of the dispute.

24.9  ZCL will continue to provide performance details pursuant to Clause 15.2 up to the Termination Date.

24.10  The Client shall pay:

i)  the fees and expenses of ZCL due up to the Termination Date; and

ii)  any additional expenses necessarily incurred by ZCL in terminating the Agreement, and the Client shallbear any losses necessarily realised in settling or concluding outstanding obligations.

24.11  Termination of this Agreement shall not affect accrued rights, existing commitments or any contractual provisionintended to survive termination.

25. Confidentiality

25.1  Each Party undertakes that it shall not disclose to any person any Confidential Information belonging to the other Party except as permitted by Clause 25.2.

25.2  Each party may disclose the other party’s Confidential Information:

i)  to its employees, officers, representatives, advisers the Custodian or any Counterparty who need to knowsuch information for the purposes of carrying out the Party’s obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other Party’s confidential information comply with this Clause 25; and

ii)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

25.3  No party shall use any other party’s Confidential Information for any purpose other than to perform its obligationsunder this agreement.

25.4  Confidential Information shall remain confidential for a period of five (5) years from the Termination Date of thisAgreement.

25.5  The Parties agree that damages may not be an adequate remedy for any breach of this Clause 25 and, accordingly,each shall be entitled (but not limited) to seek injunctive or other equitable relief restraining the other frombreaching this Clause 25.

25.6  In providing the services under this Agreement, neither ZCL, its Affiliates or a Delegate shall be obliged to discloseor to take into consideration (or to require any third party to disclose or take into consideration) any information:

i)  the disclosure or use of which might breach any prohibition, duty or confidence to any other person orarising under any applicable law;

ii)  which comes to the notice of an employee, officer or agent of ZCL, its Affiliates or a Delegate, but properlydoes not come to the actual notice of an individual managing the Accounts; or

iii)  relating to the nature or extent of any interest ZCL or any Affiliate has in any investments.

26. Data protection

26.1  Both Parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 26 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

26.2  Without prejudice to the generality of Clause 26.1 ZCL shall, in relation to any Personal Data processed in connection with the performance by ZCL of its obligations under this agreement:

i) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an

incident, and regularly assessing and evaluating the effectiveness of the technical and organisational

measures adopted by it);

ii)  ensure that all personnel who have access to and/or process Personal Data are obliged to keep thePersonal Data confidential; and

iii)  not transfer any Personal Data outside of the UK unless the prior written consent of the Client has beenobtained;

iv)  assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuringcompliance with its obligations under the Data Protection Legislation with respect to security, breachnotifications, impact assessments and consultations with supervisory authorities or regulators;

v)  notify the Client without undue delay on becoming aware of a Personal Data Breach;

vi)  at the written direction of the Client, delete or return Personal Data and copies thereof to the Client ontermination of the agreement unless required by Domestic Law to store the Personal Data.

 

27. Communications and Taping

Subject to compliance with applicable law, either Party in certain circumstances may record telephone conversations with the other.

28. 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.

29. Complaints

All formal complaints by the Client relating to the services provided by ZCL under this Agreement should in the first instance be made in writing to the Compliance Officer of ZCL.

30. Notices

30.1 Any notice given pursuant to this Agreement may be given in any manner set forth below to the address and/or email provided in Clause 30.2, or to such other address as shall be notified by that Party to the other Party from time to time and will be deemed given as indicated:

i) if in writing and delivered in person or by courier, on the date it is delivered;

ii) if sent by registered or certified mail or equivalent, on the date that mail is delivered; and
iii) if sent by electronic messaging system including email, on the date that electronic message is dispatched unless that day is not a Business Day, in which case the date of services shall be the next following Business Day.

30.2    With respect to ZCL: Address: 12 Hays Hill, Mayfair, London, W1J 8NR

Email: compliance@zukuricapital.com

With respect to the Client: Address: as detailed in the Commercial Terms or notified to ZCL from time to time

Email: as detailed in the Commercial Terms or notified to ZCL from time to time

31. Assignment

31.1  Save as provided in this Clause, neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party.
31.2  The Client agrees that ZCL may assign its rights under this Agreement to one or more of its Affiliates by giving the Client notice which shall specify a date upon which the assignment shall become effective.

 

32. Entire agreement, waivers and remedies

32.1 This Agreement, including its Schedules (as amended from time to time) and any current Instructions, constitutes the entire agreement between ZCL and the Client with respect to services relating to the Accounts. 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.

32.2  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.

32.3  So far as permitted by law, and except in the case of fraud, the Client agrees and acknowledges that its only rights and remedies shall be for breach of the terms of this Agreement, to the exclusion of all other rights and remedies including those in tort or arising under statute.

 

33. 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.

34. Amendment

34.1  This Agreement, including the Schedules, may not be amended without the prior written agreement of the Parties except that:

i)  Either Party may amend the Agreement in order to comply with, or to make the Agreement consistent with, any legal or regulatory requirements or changes to which that Party may be subject by providing a written notice to the other of such amendment;
ii)  The Client may from time to time notify ZCL in writing of any changes to the Authorised Persons; and<
iii)  either Party may amend their contact details in Clause 30 by providing written notice to the other Partyof such amendment.

34.2  Any amendment under sub-Clauses i), ii) and iii) shall take effect on the date specified in the written notice.

35. Rights of third parties

A person who is not a Party to this Agreement (other than a successor in title, permitted assignee or Indemnified Person) 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.

36. 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.

37. Governing law and jurisdiction

37.1  This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
37.2  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.

38. Definitions & Interpretation

38.1 In this Agreement the following words and expressions shall have the following meanings:

“Accounts” means the account or accounts held by or in the name of the Client, including un-invested cash, as detailed in the Commercial Terms, together with any other assets designated from time to time by the Client as being subject to the management of ZCL pursuant to this Agreement;

“Affiliate” means, in relation to ZCL, any entity controlled, directly or indirectly, by ZCL, any entity that controls, directly or indirectly, ZCL or an entity directly or indirectly under the common control with ZCL;

“this Agreement” means the Commercial Terms together with these Terms & Conditions;

“Authorised Person” means a person whose name and details appear in the Commercial Terms (or who ZCL reasonably believes represents the Client), as amended by the Client from time to time by giving notice to ZCL in accordance with Clause 30, and who is authorised to give instructions on behalf of the Client;

“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

“Confidential Information” means any trade secret or other information of a confidential nature belonging to or relating to ZCL or any Affiliate, in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory card wherever located) including (but not limited to) positions, trading methodologies, proprietary trading techniques, client information (past, present or proposed), business plans, market research, financial data and forecasts, capital strategy and capital raising activities, business methods, marketing plans and strategies, tender and price sensitive information, feasibility figures and plans relating to contracts (past, present or proposed), details of past or present or proposed contracts, requirements of business partners, technical data, know-how, information and operation manuals, research, plans for research, development, development projects, information in respect of which ZCL or any Affiliate is bound by an obligation of confidence to any third party and information marked “Confidential” or which has been notified to the Client as being confidential, or which the Client might reasonably expect ZCL or any Affiliate to regard as confidential.

“Counterparty” means any entity appointed by ZCL from time-to-time which effects transactions, executes orders or passes or places orders for execution and includes brokers, dealers, market makers, executing brokers and clearing brokers (whether acting as principal or agent);

“Custodian” means any party appointed by the Client from time to time on the Custodian’s standard terms and conditions to provide custody services in relation to all or part of the Accounts;

“Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;

“Delegate” means any person (whether or not an Affiliate of ZCL) appointed by ZCL to perform the Services or any part of it or any other services in respect of which ZCL is appointed pursuant to the Commercial Terms but excluding, for the avoidance of doubt, any Counterparty or the Custodian;

“Effective Date” means the date specified in the Commercial Terms or failing that date of the last signature on the Commercial Terms;

“Force Majeure” means any event preventing either of the Parties from performing any or all of its obligations under this Agreement which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Party so prevented, including, without limitation, nationalisation, expropriation or other governmental actions; any change of law or regulation, any law, order or regulation of a governmental, supranational or regulatory body, regulation of the banking or securities industry (including changes in market rules), postal or other strikes, lock-outs or other industrial disputes (whether involving the workforce of the Party so prevented or of any other party), act of terrorism or of God, fire, flood, storm, war, riot, civil commotion, malicious damage (including to systems), failure or breakdown in communications, computer facilities or software and the failure of any relevant exchange, clearing house, settlement system or Counterparty for any reason to perform its obligations;

“FCA” means the Financial Conduct Authority of the United Kingdom, its successors or assigns;
“FCA Rules” means the rules and guidance contained in the Handbook issued by the FCA as may be amended from time to time;
“FSMA” means the Financial Services and Markets Act 2000 as amended from time to time;

“Instructions” means instructions given by the Client to ZCL in writing, by telephone or by email in respect of any of the matters referred to in this Agreement;

“Investment Objectives” means the investment objectives based on the Investor Suitability Questionnaire as may be amended from time to time upon agreement of the parties in writing;

“Investor Suitability Questionnaire” means the questionnaire sent to the Client by ZCL prior to entering into this Agreement;

“Legal Entity Identifier” means the code made up of 20 alphanumerical digits which is used to uniquely identify any legal entity or structure;

“Litigation” means any proceedings or potential proceedings (including without limitation insolvency proceedings, securities litigation and arbitration) relating to assets held from time to time within the Accounts;

“Losses” includes losses, damages, costs, claims, liabilities, charges, demands and expenses;

“MiFID II” means Directive 2014/65/EU on markets in financial instruments, Regulation (EU) No 600/2014 on markets in financial instruments, and any secondary legislation, rules, regulations and procedures made pursuant to it;

“Party” means either of ZCL or the Client as the case may be and “Parties” shall be construed accordingly; “Personal Data” means any information relating to an identified or identifiable natural living person;

“Proceedings” means any suit, action or proceedings relating to any dispute arising out of or in connection with this Agreement;

“Services” means the services provided by ZCL under this Agreement as set out in more particularity in the Commercial Terms;

“Standard of Care” means, in relation to ZCL, the standard of care that could reasonably be expected of a professional investment manager acting in good faith and with reasonable care and skill;

“Termination Date” means the date determined in accordance with Clause 24.4 or Clause 24.3; “Terms & Conditions” means the terms and conditions set out in this document;

“VAT” means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature; and

38.2 In this Agreement:

i)  any other words or phrases used which are defined in the FCA Rules shall have the same meanings in this Agreement unless the context requires otherwise;
ii)  references 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;
iii)  references to legislation, Acts of Parliament or other statutory provisions are, for the avoidance of doubt, references to United Kingdom legislation, Acts of Parliament and statutes;
iv)  words in headings are for information only and shall not affect the construction of this Agreement;
v)  references to “person” shall be construed as including any natural or legal person;
vi)  any words following the terms “including”, “include”, “in particular”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms; and
vii)  references to the singular include the plural and vice versa.