Ulster Bank Trade Terms & Conditions [printable version]
Where:
1. The Bank has developed an internet site known as www.ulsterbank.com/capitalmarkets which offers various facilities including research, information, news services, indicative trading rates, trading facilities, trade reports and back office functions;
2. The Customer wishes to utilise the Trading Applications.
The Bank and the Customer agree that: 1. Interpretation
1.1 Capitalised terms and expressions used in this Agreement shall have the meanings given to them in the Appendix to this Agreement.
2. Transaction Execution
2.1 Transactions on all Trading Applications shall be executed as follows:
2.1.1 The Customer shall submit a request to enter into the Transaction in accordance with the Documentation (a "Customer Request") as follows:
2.1.2 In response to a Customer Request, the Bank may (but shall not be obliged to) make an offer to you, via the Trading System, to enter into the Transaction referred to in the Customer Request at a rate of exchange, price, premium and/or interest rate (as applicable) specified by the Bank (the “Offer”);
2.1.3 If you wish to accept the Offer, you shall notify the Bank of your intention to accept that Offer by clicking on the appropriate icon on the screen during the Acceptance Period. The Offer shall be accepted and the Transaction shall only be concluded and legally binding when the Bank receives this notification (the “Acceptance”). Such Acceptance by you shall be irrevocable;
2.1.4 The Bank may withdraw an Offer at any time prior to our receipt of the Acceptance from you;
2.2 The Bank’s records in all matters relating to the conclusion of Transactions, including but not limited to the time of receipt or sending of an Acceptance and the timing of any withdrawal of any Offer, shall be binding on you and conclusive evidence in respect of any Transaction concluded via the Trading System, unless otherwise stated by the Bank.
2.3 The Bank shall transmit to you a notice, confirming the details of each concluded Transaction: for foreign exchange forward contracts a Confirmation Notice will be sent by post; for foreign exchange traded at the pre-spot or spot rate, a trade advice will be available on the Trading System. Without prejudice to the validity or enforceability of a Transaction, a Confirmation Notice sent by the Bank to you via the Trading System or otherwise shall constitute sufficient evidence to prove the content of the Transaction. In the event of any inconsistency between Confirmation Notices relating to the same Transaction with you, the Confirmation Notice which was sent last by the Bank shall apply. All such confirmations or notices will be produced in the English language.
3. Access to the Trading System
3.1 The Bank grants you access to the Trading System to enter into and verify Transactions with the Bank, on the terms and conditions contained in this Agreement, as supplemented by reasonable instructions issued by the Bank from time to time.
3.2 The Bank grants you for the duration of this Agreement a non-transferable, non-exclusive, worldwide, royalty free licence to access and use the Royal Bank of Scotland Group's information, know-how relating thereto, trade marks, patents, copyrights, design rights (whether registered or unregistered), database rights and all other intellectual property rights (collectively known as the “Intellectual Property”) solely to the extent necessary to enter into and verify Transactions in accordance with this Agreement. In turn, you grant to the Bank a perpetual, irrevocable, non-exclusive, worldwide, royalty-free licence to use all information provided by you to the Bank in using the Trading System and all information relating to total volume of trades executed through the Trading Applications provided that in the latter case our use of such information does not disclose your identity. You consent, and shall ensure that any individual authorised by the you to use the Trading System consents, to the Bank using the information (for example, name, address, trading habits) we obtain from you for the purposes of carrying out the activities contemplated by this Agreement.
3.3 You undertake not to copy, reproduce, publish, distribute, sell, exploit or otherwise part with or make any other use of the Intellectual Property except to the extent required by law, nor to authorise, enable or assist any third party in doing so.
3.4 You may not, nor permit others to, decompile, reverse-engineer or disassemble the Trading System or any part thereof except to the extent expressly required by law.
3.5 You acknowledge that all rights in the Intellectual Property are, and shall remain, vested in the Royal Bank of Scotland Group plc and agree not to infringe, challenge or call into question the Royal Bank of Scotland’s rights in the Intellectual Property nor to do or permit anything to be done which may reflect badly upon or be detrimental to the Intellectual Property or which may be inconsistent with or damage the good name, reputation and image of the Royal Bank of Scotland Group or of the Bank. You agree to inform the Bank immediately if you become aware of any third party activity which infringes or threatens the Intellectual Property.
3.6 You agree to pay on demand to the Royal Bank of Scotland Group and the Bank all losses and costs (including, without limitation, reasonable legal fees), incurred or awarded against the Royal Bank of Scotland Group and the Bank as a result of, or in connection with, your use of the Intellectual Property otherwise than in accordance with this Agreement.
3.7 System availability
The Trading System will be available to you from the opening of business in Dublin on Monday until the close of business in New York on Friday of each week on a 24 hour basis (the “Core Hours”). However, support or intervention from an employee of the Ulster Bank Group or one of our agents will only be available to you during normal Dublin business hours.
4. Security Provisions
4.1 You shall comply with the terms set out in the Documentation and this Agreement as updated and notified to you from time to time by the Bank. Acceptance by you of any change to the Documentation, whether online or otherwise, shall be by any method of acceptance specified in the notice of such change, or shall be implied by your continued use of the Trading System after you have been notified of the change.
4.2 You shall ensure that at all times the security measures referred to in clause 4.2 within your control are such as to ensure the security and safekeeping of all information relating to your usage of and access to the Trading System.
4.3 You shall inform the Bank immediately if the security measures are compromised in any way and you shall be responsible for checking and monitoring Users’ Permissions are correct and current from time to time and are appropriate. Any revocation or change in the Users' Permissions or the personnel to whom Users' Permissions have been granted shall be effective when the Bank receives written notification from you.
4.4 You shall be liable to the Bank and agree to pay the Bank on demand all losses suffered by the Bank resulting from the disclosure of any Password to a third party and/or a failure by you to keep any Password secure and safe, whether such disclosure or failure was committed by an employee or agent of yours or otherwise.
4.5 You shall use your best endeavours to ensure that unauthorised access by an employee or agent of yours or a third party to the Bank’s systems and Trading System is prevented.
5. The Bank’s Authority
5.1 You shall be responsible for the accuracy of all Customer Requests.
5.2 You authorise the Bank to act upon all instructions given by you through the Trading System including but not limited to Customer Requests, Offers and Acceptances without taking any steps to ensure the authenticity of such instructions, or the authority of the persons giving such instructions, notwithstanding that such Customer Requests, Offers or Acceptance(s) may conflict with, or are in any way inconsistent with, any other instructions received by the Bank from you.
5.3 The Bank shall be under no obligation to cancel or amend any Customer Request, Offer or Acceptance, after the Bank has received it, but we may do so at our absolute discretion.
6. Additional Terms
6.1 We agree that, once concluded in accordance with clause 2, each Transaction shall be governed by any applicable Master Agreement.
6.2 Without prejudice to clause 6.1, this Agreement and any Transactions entered into pursuant to this Agreement shall be governed by English law and you and we irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute arising out of or in connection with this Agreement and any Transactions entered into pursuant to this Agreement. You waive any right to object to the English courts on grounds that they are an inconvenient or inappropriate forum to settle such dispute.
6.3 Except for Master Agreements that govern Transactions, the terms of any mandate, similar document or term in force between the Bank and you shall not apply to Transactions.
6.4 You acknowledge that you may not enter into Transactions outside the trading hours determined by the Bank from time to time.
6.5 In the event of a technical malfunction or an operating error in the Bank’s systems or the Trading System, an Offer is made by the Bank at a rate which obviously deviates significantly from the market price of the financial product the subject of the Transaction prevailing at the time the Transaction is being offered by the Bank, you agree that you will not attempt Acceptance of such an Offer and that you will inform the Bank immediately.
6.6 If a Transaction is concluded at a rate which obviously deviates significantly from the market price of the financial product the subject of the Transaction prevailing at the time the Transaction was offered or accepted by the Bank, as applicable as a result of a technical malfunction or an operating error in the Bank’s systems or the Trading System, then the Transaction shall not be binding on the Bank or you, unless each of us agree otherwise, and both of us will return any premium or payments made immediately to the other.
7. Confidential Information
You and the Bank shall take reasonable care to ensure that information pertaining to the use of this Trading System remains confidential except that you authorise the Bank to provide third parties with such information relating to your account(s) as may in the Bank’s reasonable opinion be necessary to give effect to a Customer Request, provided such third parties agree to similar obligations of confidentiality in relation to such information, or in order to comply with the order of any court, government agency, the Financial Services Authority or other lawful authority in any competent jurisdiction.
8. Representations
8.1 You acknowledge that software and hardware in general is not error-free and that the provision of any on-line service may be subject to interruption and/or delay and that the existence of such errors or interruption in the Trading System shall not constitute a breach by the Bank of this Agreement.
8.2 Except as set out in this Agreement and to the extent permitted by law, the Bank disclaims all confirmations, representations and statements with respect to the Trading System, either express or implied, whether by statute or otherwise, including, but not limited to, any implied confirmation of satisfactory quality or fitness for a particular purpose.
8.3 The Bank makes no representation that the Trading System shall be free from all known viruses and you shall, at your own expense, employ such virus scanning software and take such precautions in respect of your use of the Trading System as you shall consider necessary.
8.4 You acknowledge that the Bank has not given you any advice and that you have not given the Bank any discretion in relation to the Transactions or otherwise. Nothing contained on the Trading System constitutes investment advice or an assurance or guarantee as to the expected outcome of any strategy. You agree that you will not rely upon the contents of the Trading System and that you will take all steps you deem necessary, at your own expense, including obtaining independent professional advice, to arrive at an independent opinion of any proposed strategy and your decision whether or not to proceed or to enter into Transactions. The Bank, and our employees, may assist with the processing and completion of any Transactions.
8.5 You confirm that where you are entering into a Transaction as agent for another, you are expressly authorised to do so by your principal and to give all necessary instructions using the Trading System and to enter into this Agreement on behalf of such principal, and that such principal provides to the Bank all the representations and confirmations that are stated to be made by you in this Agreement.
8.6 You confirm that in relation to each Acceptance you are duly authorised to accept the Offer and that such action by you does not breach any applicable laws. The Bank has no obligation to check that entry into any Transaction by you is in breach of any applicable law.
8.7 Without prejudice to clause 6.2, if this Agreement or a Transaction which you enter into pursuant to this Agreement is not valid or is not enforceable by the Bank under any applicable law, you agree to pay to the Bank on demand all loss and damages we incur arising out of and in connection with such invalidity or unenforceability, including, but not limited to, restoring the Bank to the position we would have been in had we not entered into this Agreement or any Transaction with you.
8.8 Each of us represents and confirms to the other that:
8.8.1 it has the capacity and authority to enter into and perform this Agreement;
8.8.2 the making of and performance of this Agreement does not conflict with any existing obligations; and
8.8.3 once duly entered into this Agreement will constitute legal, valid and binding obligations.
9. Limitation of Bank’s Liability
9.1 Subject to the remainder of this clause 9, the Bank’s liability (whether in contract, tort (including negligence) or otherwise) to you for any loss or damage whatsoever, or howsoever caused, in respect of the accuracy, reliability, performance, completeness, timeliness, continued availability or otherwise, of the Trading System, or for delays or omissions therein or interruptions on the delivery thereof shall be limited to £5,000 in respect of all claims arising in any calendar year.
9.2 You shall notify the Bank immediately of any errors contained in the information you obtain through the Trading System. If you become aware of errors or an error which you fail to relay to the Bank, you will be liable for any losses which the Bank incurs as a result of your failure to relay information about those errors or that error.
9.3 Notwithstanding the generality of clause 9.1, the Bank expressly excludes liability to you for any loss of profits, loss of business, revenue, data, goodwill or anticipated savings, or for indirect or consequential loss or damage, even if we were aware of the possibility that such loss or damage could occur, which may arise out of or in connection with your use of the Trading System or your entering into this Agreement.
9.4 The Bank does not exclude liability for death or personal injury, to the extent only that the same arises as a result of the negligence of the Bank, our employees, agents or authorised representatives, or for fraud.
9.5 You shall take all reasonable steps to mitigate your loss arising in relation to any claim or action (whether for negligence, breach of contract or otherwise) which you may bring against the Bank. In particular, if you experience any fault or delay with the Trading System, you should telephone the Bank without delay during normal hours. Any transaction agreed over the telephone as a result will be governed by this Agreement.
9.6 You acknowledge and accept and will inform your employees and agents (where applicable) that all telephone conversations with the Bank may be recorded and that any disagreement shall be resolved by reference to any such recordings where available.
9.7 The Bank shall not be liable to you for any loss or damage arising due to failure or omission to perform or a delay in performing your obligations under this Agreement due to any event or cause beyond our reasonable control including, without limitation, acts of God, acts or regulations of government or other authorities, war, fire, flood, explosions, civil commotion, strikes or other industrial disputes, power failure, failure of telecommunication lines, connection or equipment, or failure or defects in any hardware or software owned or supplied by third parties.
9.8 Where Bank accepts instructions via telephone or facsimile, you agree to pay on demand all losses which we may suffer by reason of us acting on any such instructions except where such losses arise out of any fraud or negligence on the part of the Bank, our officers, servants or agents.
9.9 You are responsible for establishing and maintaining your access to the Trading System. We shall not be responsible for the services to be rendered by the third party network provider.
9.10 You acknowledge and understand that the Bank provides an execution only service and shall not be liable for trading losses incurred by you.
9.11 You undertake and represent that you shall enter into transactions under these Terms only for either (i) hedging purposes, and/or (ii) for reasons relating to an underlying legitimate business or economic purpose. The Bank shall not monitor transactions to ensure that they meet these purposes, this remains your responsibility. Hedging means the reduction of risk in respect of your financial exposures.
10. General
10.1 This Agreement and the Documentation (as each may be amended from time to time by the Bank) together with any applicable Master Agreement shall constitute the entire agreement between us relating to the use of Trading System. This Agreement may be supplemented or amended by way of restatement, additional terms or notices which may be published on the Trading System from time to time by the Bank and accepted by you electronically or by such other means as may be specified, or otherwise such acceptance shall be implied by your continued use of the Trading System after you have been notified of the change. Subject to clause 8.4, each of us acknowledges that in entering into this Agreement we have not relied on any representation, confirmation, collateral contract or other assurance (except those set out in this Agreement) made by or on behalf of either of us before the date of this Agreement. Each of us waives all rights and remedies which, but for this clause 10.1, might otherwise be available to us in respect of any such representation, confirmation, collateral contract or other assurance.
10.2 If there is any conflict or inconsistency between the provisions of this Agreement and the Documentation (except where such Documentation is an amendment to this Agreement), this Agreement will apply.
10.3 The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of such right or remedy under this Agreement.
10.4 If any of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired unless the business purpose of this Agreement is substantially frustrated.
10.5 Notwithstanding any other provision of this Agreement, nothing in this Agreement shall confer, nor be intended to confer, a benefit on any third party for the purposes of the Contracts (Rights of Third Parties) Act 1999 or for any other purpose.
10.6 The headings in this Agreement are for convenience only and shall not limit or affect the interpretation of this Agreement.
10.7 The information contained on the Trading System concerning the financial products and services of the Bank is intended for use only in jurisdictions where such products and services may be used or sold.
10.8 Nothing in this Agreement shall exclude any liability the Bank may owe to you under the Financial Services and Markets Act 2000 and rules made under it.
11. Data Protection
You (and your employees, if you are not an individual) agree that we and other companies in the Royal Bank of Scotland Group may hold and process by computer or otherwise any information we hold about you (and, where applicable, your employees) and may use any of that information to administer and operate your account and to provide any services to you, to monitor and analyse the conduct of your account, to assess any credit decision and to enable us to carry out statistical and other analyses. You agree that we may disclose that information to other companies in the Royal Bank of Scotland Group for these purposes. You agree that we may also transfer information we hold about you to any country, including countries outside the European Economic Area that may not have data protection laws, for any of the purposes described in this clause. We may also disclose information about you (and, where applicable, your employees) to law enforcement agencies or regulators when properly requested to do so.
12. Term and Termination
12.1 This Agreement and your access to the Trading System shall continue unless terminated by either of us giving to the other no less than 30 days' prior notice in writing. Notwithstanding this right to terminate by giving you no less than 30 days' prior notice in writing, we reserve the right to suspend immediately your access to the Trading System and/or the Users' Permissions where we have serious grounds for doing so.
12.2 All rights and obligations of each of us shall cease to have effect immediately upon termination of this Agreement except that termination shall not affect the accrued rights and obligations of each of us at the date of termination and the continued existence and validity of the rights and obligations of each of us under those clauses in this Agreement which are expressly or by implication intended to survive termination.
This is our standard customer agreement upon which we intend to rely. For your own benefit and protection you should read these terms carefully before signing them. If you do not understand any point please ask for further information.
Appendix
“Acceptance Period” means, where applicable, a period of seconds for acceptance of an Offer notified by the Bank to the Customer from time to time;
“Documentation” means any on-line help facilities, user guide (if any), security protocol or measures to be followed by the Customer in using the Trading System and any other materials delivered to the Customer by the Bank or made available to the Customer via the Trading System or otherwise for the purposes of using the Trading System from time to time;
“Intellectual Property” has the meaning given in clause 3.2;
“Master Agreement” means the agreement, if any, entered into between the Bank and the Customer which governs dealings in Transactions which may include one or more of the following, without limitation: the 1992 or 2002 ISDA Master Agreement (as published by the International Swaps and Derivatives Association, Inc.), the International Foreign Exchange Master Agreement, the Foreign Exchange and Options Master Agreement, the International Currency Option Master Agreement and/or the International Deposit;Netting Agreement (each as published by the British Bankers’ Association) or any agreement having broadly similar effect to any of the above;
“Password” means any confidential password or passphrase, including any electronic signature, code or number, issued to the Customer by the Bank for the purposes of sending a Customer Request or accessing the Trading System;
“Ulster Bank Trade” means the Bank’s trading application called Ulster Bank Trade enabling Customers to enter into Transactions as permitted by the Bank and displayed on Ulster Bank Trade;
“Trading Applications” means the Bank’s electronic trading applications available on the Trading System including but not limited to Ulster Bank Trade (or such other name as may be given to such applications by the Bank) and any such other electronic trading applications which the Bank may make available on the Trading System which the parties agree shall be covered by this Agreement;
“Trading System” means those of the Trading Applications upon which Customers can conduct Transactions and enabling the Customer (subject to availability) to view details of its deal histories, outstanding transactions, settlement instructions, Confirmation Notice status and confirm details of transactions which the Bank may authorise the Customer to use and which are hosted on, or available via, the Bank’s internet site (domain name: www.ulsterbank.com/capitalmarkets as may be amended from time to time);
“Transaction” means any spot, pre-spot or forward foreign exchange transaction or any other products agreed from time to time between the Bank and the Customer to be traded on the Trading System; and
“Users’ Permissions” means the Trading System access level granted to any employee, consultant or third party who accesses the Trading System on behalf of the Customer, as notified to the Bank.
