Terms & Conditions
“Account” means a deposit account with the Bank that Customer has in its name.
“Application Form” means any relationship information form, tax residency self-certification form [Note: tax residency self-certification forms should also be retained as a standalone component of the account opening package], account information form, Visa Card application form, source of wealth declaration or other similar or equivalent instrument provided by Customer to the Bank in connection with the opening or maintaining of an Account and/or the provision of related Services.
“Authorities” means any judicial, administrative, public or regulatory body, any government, any authority, court, central bank or law enforcement body, or any of their agents with jurisdiction over any part of the Bank or any affiliate of the Bank.
“Bank” means Proven Bank (Cayman) Limited together with its successors in title, permitted assigns and transferees [or, with respect to any Fixed Term Deposit only, Proven Bank (Bahamas) Limited together with its successors in title, permitted assigns and transferees] [Note: please confirm whether these descriptions are correct].
“Business Day” means a day on which the Bank is open for business.
“Certificate of Deposit Receipt” means, in respect of any Fixed Term Deposit, a certificate of deposit receipt issued by the Bank stipulating the amount, interest rate, deposit term, maturity value and other material terms.
“Compliance Obligations” means obligations of the Bank to comply with (i) laws, regulations or international guidance, (ii) any demand from Authorities or reporting, disclosure or other obligations under any laws, regulations, orders, judgments, treaties or sanctions measures applicable to the Bank or any of its affiliates, (iii) laws or regulations requiring the Bank to verify the identity or particulars of Customer, or (iv) any internal policies or procedures of the Bank.
“Connected Person” means any person (other than Customer) whose information (including Personal Data or information relating to such person’s tax affairs) Customer provides, or which is provided on Customer’s behalf, to the Bank or any affiliate of the Bank. A Connected Person may include any guarantor, recipient of a payment, an attorney-in-fact appointed under a power of attorney, anyone who has opened or operates an Account on behalf of Customer, a director or principal shareholder or signatory of Customer, anyone entitled to monies in an Account or any other person with whom Customer has a relationship that is relevant to Customer’s relationship with the Bank.
“Customer” means any person holding Account(s) with the Bank subject to these Terms and Conditions.
“Customer Information” includes Personal Data and confidential information relating to Customer, or a Connected Person, or a potential Customer.
“EBS Security Code” means the secret code(s) and/or secret password(s) selected by Customer to permit Customer access to the EBS Service in the Bank’s required manner and which may be used to execute an EBS Transaction.
“EBS Service” means the Bank’s Electronic Banking System service (including personal computer banking, telephone banking and internet banking) offered by the Bank from time to time through the use of the telephone and/or the internet and/or any other electronic means for the purpose of permitting the execution of an EBS Transaction.
“EBS Transaction” means a transaction made on an Account and executed by the use of the EBS Service together with the EBS Security Code in the Bank’s required manner.
“Financial Crime” means money laundering, terrorist financing, bribery, corruption, tax evasion, fraud, evasion of economic or trade sanctions and/or any acts or attempts to circumvent or break any laws, regulations, orders, judgments, treaties or sanctions measures relating to such matters.
“Financial Crime Risk Management Activity” means any action to meet Compliance Obligations relating to the detection, investigation and prevention of Financial Crime, including (i) screening, intercepting and investigating any communication, application for Services or any payment, whether sent to or by Customer or on Customer’s behalf, (ii) investigating the source of or intended recipient of money, (iii) combining Customer Information with other related information in the possession of the Bank or any affiliate of the Bank and/or (iv) making further enquiries as to the status of a relevant person, whether they are subject to a sanctions regime or confirming their identity or status.
“Fixed Term Deposit” means any fixed term deposit made by Customer with the Bank in accordance with the terms hereof.
“Foreign Currency” means any currency other than Cayman Islands Dollars.
“Foreign Currency Account” means an Account denominated in a Foreign Currency.
“Instruments” means cheques, promissory notes, bank and express money orders or other orders in respect of the payment of money, or other instruments or securities, which shall be deemed to include instruments drawn on any branch of the Bank.
“Losses” means claims, losses, actions, demands, liabilities, injuries, damages, costs and expenses of any nature whatsoever.
“Personal Data” means any information relating to a person from which Customer or a Connected Person can be identified.
“Services” means the opening, maintaining and/or closing of an Account, together with any and all services ancillary thereto.
“Tax Authority” means any tax authority or tax information authority that has jurisdiction over the Bank from time to time.
“Unauthenticated Instructions” means any communication, whether by way of telephone, telex, facsimile or electronic mail transmission given by Customer or purportedly given by Customer to the Bank in respect of the provision of Services.
“Visa Card” means any Visa prepaid card issued by the Bank in accordance with these Terms and Conditions.
“Visa Cardholder Agreement” means any cardholder agreement or other similar or equivalent terms of the Bank applicable to Visa Cards from time to time.
(a) These Terms and Conditions (i) apply in respect of each Account held at the Bank and (ii) supersede any previous terms and conditions as between Customer and the Bank.
(b) Subject to paragraph (a) above, these Terms and Conditions are in addition to any other agreement for Services that Customer may have with the Bank at present or in the future. If there is a conflict between these Terms and Conditions and any other such agreement, these Terms and Conditions shall be subordinate to the extent of such conflict, unless the other agreement expressly states otherwise.
(c) Continued use of any Account or Services constitutes acceptance of these Terms and Conditions, as the same may be amended from time to time. The Bank may vary these Terms and Conditions at any time, without prior notice to Customer.
3. Application Forms
(a) Customer represents and warrants to the Bank that (i) Customer has the power, capacity and authority to sign any Application Form together with any related declarations, agreements and other documents and (ii) the information disclosed in any Application Form is true, complete and accurate in all respects.
(b) Customer undertakes to (i) inform the Bank of any changes to information disclosed by Customer to the Bank in an Application Form or that could otherwise affect the operation of an Account and (ii) provide or cause the Bank to be provided with an updated Application Form together with any additional documentation that the Bank, in its sole discretion, may reasonably request. Customer shall comply with its obligations under (i) and (ii) within 30 (thirty) days of any such change occurring. Customer agrees that any failure to do so shall entitle the Bank to suspend or terminate any Services relating to any affected Account.
(c) Customer (i) acknowledges that completion of an Application Form by Customer and/or receipt thereof by the Bank shall not be construed as acceptance to establish an Account with the Bank and that all information disclosed in an Application Form is subject to verification by the Bank in accordance with its internal policies and procedures, (ii) consents to the Bank independently verifying such information and to the exchange of financial information by the Bank with other financial institutions, credit bureaus and the like of a credit-related nature at any time and (iii) agrees to indemnify and hold the Bank harmless from all Losses to the extent incurred by the Bank as a result of any such exchange.
4. Operation of Accounts
(a) Customer confirms that all funds deposited to an Account are and will continue to be beneficially owned by each relevant Account holder.
(b) The Bank may debit an Account at any time if an Instrument is dishonoured or not paid for any reason whatsoever (including, without limitation, with respect to any cheque drawn on the branch of the Bank at which an Account is maintained which has been cashed, negotiated or credited to such Account but which has been dishonoured or otherwise found not good) or if for any reason the Bank is required to refund, or is unable to collect or withdraw, any corresponding or related amounts, in each case together with all costs, charges and expenses incurred by the Bank in connection therewith.
(c) Customer waives presentment for payment, notice of dishonour, protest and notice of protest in respect of all Instruments. Customer shall be responsible and liable to the Bank on any Instrument in the same manner and to the same extent as if such Instrument had been duly presented and protested and notice of dishonour and protest given as regards all parties thereto as required by law.
(d) The Bank is authorised to present for payment or acceptance or collect Instruments through such banks or other agents as the Bank may deem appropriate at the sole risk and expense of Customer and to give to such banks or other agents such instructions as to collection as the Bank may deem appropriate. The Bank may accept either cash or bank drafts, cheques, settlement vouchers, or any other evidence of payment, in payment of the relevant Instruments or in remittance thereof.
(e) Customer agrees to indemnify and hold the Bank harmless from all Losses to the extent incurred by the Bank as a result of the application of any law having effect within a jurisdiction where any of the Instruments are or may be payable or where any liabilities in respect thereof or their proceeds may arise, including, without limitation, any Losses which may arise by reason of the endorsement of the Bank or any branch thereof.
(f) Customer agrees that (i) the Bank is authorised to pay as in the case of any ordinary cheque and debit any Account of Customer in the customary manner with every order to pay, promissory note or acceptance of Customer presented for payment at the branch of the Bank at which an Account of Customer is carried, (ii) Customer will repay to the Bank all amounts debited to any Account of Customer in accordance with the provisions hereof, and (iii) the Bank may from time to time debit from any Account of Customer the Bank’s usual charges and fees for the keeping and operating of any Account of Customer and the provision of any related Services, which charges and fees Customer agrees to pay.
(g) The Bank may vary the interest rates charged or paid on an Account at any time.
(h) The Bank may (i) apply any credit balance in any Account against any debt or liability Customer owes to the Bank or any affiliate of the Bank without notice and/or retain a debt collection service for such purposes and (ii) without notice to Customer set off any matured obligation due from Customer against any matured obligation owed by the Bank to Customer, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Bank may convert either obligation at a market rate of exchange in its usual course of business for the purposes of such set-off.
(i) In the event that Customer conducts Accounts at more than one branch of the Bank, the provisions hereof shall apply to each such Account.
(j) Customer undertakes to the Bank that it will not hinder, delay or defraud any creditors, or engage in any conduct or use of the Services that would be unlawful.
5. Personal, Business and Trust Accounts
(a) An Account may only be used for personal or business banking needs as declared by Customer.
(b) Unless Customer notifies the Bank specifically in writing, Customer certifies that no Account is being used on behalf of a third party. Regardless of any such notice, if Customer holds any funds as trustee or fiduciary, the Bank shall not be responsible to ensure that Customer uses such funds in accordance with its trustee or fiduciary duties, and the Bank shall recognise Customer as the sole holder of the Account.
(c) For any Account entitled “in trust for” or “ITF” or any similar or equivalent term, Customer shall remain the sole account holder of such Account, and the purported beneficiary shall not be a customer of the Bank.
(a) The Bank may set an overdraft limit for an Account, which may be changed, made payable, or revoked at any time. An Account that is overdrawn will be subject to fees and interest at the Bank’s then prevailing rates.
(b) Irrespective of any previous practice or acceptance, the Bank may refuse to honour a withdrawal request made against an Account, or to pay a cheque or other payment, if there are insufficient available funds (including any overdraft limit) in such Account.
7. Foreign Currency Deposits
(a) The Bank may at its sole discretion, upon Customer’s request, open Foreign Currency Account(s) in Customer’s name in the books of the Bank.
(b) Except as otherwise provided in paragraph (c) below, the current credit balance in any such Foreign Currency Account as well as any further amounts that may be subsequently credited thereto are withdrawable only by way of demand draft, mail or telegraphic transfer at Customer’s risk and payable in the Foreign Currency in which the relevant Foreign Currency Account is denominated or in cash of the same Foreign Currency at the Bank’s option.
(c) The Bank may also honour any and all instruments (not being cheques within the meaning of the Bills of Exchange Law (as revised) of the Cayman Islands or other applicable laws) drawn by Customer against a Foreign Currency Account in the relevant Foreign Currency and stated to be payable by demand draft as if such instruments were cheques and, in consideration of the Bank so doing, Customer agrees to indemnify and hold the Bank harmless from all Losses to the extent incurred by the Bank as a result of the Bank so doing and for which the Bank would not be liable had such instruments been cheques within the meaning of the Bills of Exchange Law (as revised) of the Cayman Islands.
(d) The credit balances in any Foreign Currency Account(s) may be held by the Bank as part of general balances with the Bank’s correspondent of choice, and are subject to any regulations or restrictions which any Authorities may put in place regarding the withdrawal thereof.
(e) Customer assumes with respect to any such Foreign Currency Account(s) full and complete responsibility and liability for any consequences resulting from the imposition of present or future taxes, regulations or restrictions such as levies, embargoes and the like, and Customer authorises the Bank to debit from any such Foreign Currency Account(s) any and all charges of the Bank with respect thereto.
8. Fixed Term Deposits
(a) The Bank may at its sole discretion, upon Customer’s request, accept a Fixed Term Deposit made by Customer with the Bank. Within a reasonable time after the commencement of the original deposit period in respect of a Fixed Term Deposit, the Bank shall deliver to, or mail by ordinary post to, Customer at the most recent address on file with the Bank, a Certificate of Deposit Receipt stipulating the amount, interest rate, deposit term, maturity value and other material terms.
(b) A Fixed Term Deposit is only repayable by the issuing branch of the Bank upon surrender of the corresponding Certificate of Deposit Receipt. A Fixed Term Deposit may only be transferred, negotiated and assigned by Customer as depositor to the Bank. Customer will procure that all purported holders or assignees of a Fixed Term Deposit agree that the Bank’s right of set-off will have priority over any of their claims, which shall be subject and subordinate to the rights and interests of the Bank in all respects.
(c) Unless the Bank notifies Customer in writing to the contrary, any Fixed Term Deposit which is renewed or otherwise remains with the Bank after the expiry of the maturity date stipulated in the Certificate of Deposit Receipt, shall be regulated by the same terms and conditions which were applicable to the Fixed Term Deposit immediately prior to the expiry of such maturity date, save that the interest rate shall be that rate customarily payable by the Bank on deposits of that nature at the date of such renewal, and provided always that interest earned on such Fixed Term Deposit shall be added to the rolling principal balance or as otherwise instructed.
(d) Where a maturing Fixed Term Deposit is not to remain for additional periods, payment thereof shall be by draft or as otherwise instructed. Upon mailing of such remittance the Bank shall be discharged from all responsibilities and obligations in respect of such Fixed Term Deposit and the Bank shall be relieved of any liability for any Loss which may be suffered by Customer in respect of theft, forgery, non-receipt of mail or other consequences which may arise by reason of mailing such remittance, provided however that any principal or interest remaining undrawn on such draft or bank cheque by anyone whosoever shall be held in trust by the Bank for and on behalf of Customer without any liability to pay further interest thereon.
(e) Where Customer as depositor of a Fixed Term Deposit is two or more persons as individuals and it is indicated on the Certificate of Deposit Receipt that a remittance may be sent to any one of them, they agree with each other and with the Bank that each of them singularly shall have the right to require the Bank to make remittance to any one of them and that a remittance by the Bank in favour of any one of them shall operate as a complete discharge to the Bank in respect of the amount so remitted.
(f) Where Customer as depositor of a Fixed Term Deposit is two or more persons as individuals and it is stated on the Certificate of Deposit Receipt that the Fixed Term Deposit is “joint with right of survivorship”, it is agreed that after receipt by the Bank of satisfactory evidence of the death of any of them, any remittances to be made by the Bank shall be made in favour of the survivors or survivor and any credits to be made by the Bank shall, notwithstanding that an Account is indicated on the Certificate of Deposit Receipt, be made into such Account at the branch named on the Certificate of Deposit Receipt as the survivors or survivor may specify in writing.
(g) The Bank is authorised to comply with the provisions of applicable laws, regulations or orders now or hereafter in force which purport to impose on the Bank a duty to take or refrain from taking any action in respect of a Fixed Term Deposit or any interest accrued thereon.
(h) Withdrawals prior to maturity are prohibited. Notwithstanding this, the Bank reserves the right to require 30 (thirty) days’ notice of such withdrawal and to levy a substantial interest penalty, if it waives this condition. All such withdrawals, when permitted, must be requested in writing by all parties to the Certificate of Deposit Receipt.
Early Withdrawal Penalty: If the Bank grants the depositor’s request to withdraw all or a portion of the deposit before the maturity date, the greater of the loss of interest accrued or $150 (or currency equivalent), plus 1% of the principal shall be levied. At the bank’s discretion the cost of replacement funding may also apply.
Waiver Of Penalty: If any Depositor dies or is determined to be legally incompetent by a court, the penalty will be waived.
(i) The Bank may at any time vary the terms and conditions of the Deposit from time to time by way of written notice to the Depositor which may be communicated by any appropriate means/media at the Bank’s option, including but not limited to publication on the Bank’s website, or alternatively sending by mail, messenger, fax or electronic mail to the mailing address, physical address, fax number or e-mail address (as the case may be) of the Depositor as noted in the Bank’s records as at the date of such notice. The variation shall take effect seven (7) days after the date of the notice or on such other date as may be specified in the notice.
(j) Save and except as otherwise herein provided all notices provided to the Depositor shall be in writing and sent by pre-paid post, messenger, fax or electronic mail to the mailing address, physical address, fax number or e-mail address (as the case may be) of the Depositor as noted in the Bank’s records as at the date of such notice and in the case of the Bank at the Depositor’s branch of the account or to any other address specified by the Bank. No notice to the Bank will take effect until received by the Bank. All written notices sent to the Depositor by pre-paid post shall be deemed to arrive on the third day after posting. Notices sent by messenger, fax and email shall be deemed received on delivery.
(k) Any information collected by the Bank in respect of Customer as depositor (including, but not limited to, any national insurance number or any similar or equivalent identification information) may be retained by the Bank and used by the Bank and its employees at any time (including after the termination of any Fixed Term Deposit arrangements and/or if Customer is no longer a customer of the Bank) in relation to (i) the provision of any Services by the Bank to Customer (including, but not limited to, the determination of Customer’s financial position) and (ii) the promotion of the Bank’s Services to Customer, and may be given by the Bank to any persons who have or may have a financial or other interest in or business dealings with Customer, including but not limited to any credit bureau.
(l) Any disposal of funds by the Bank in accordance with the provisions of a Certificate of Deposit Receipt shall discharge the Bank from all obligations in respect of the relevant Fixed Term Deposit and any interest thereon.
9. Electronic Banking
(a) The Bank is authorised to (i) accept and/or honour each EBS Transaction according to the instructions given to the Bank through the EBS Service and (ii) debit or credit an Account with all amounts withdrawn or deposited by use of the EBS Service, in accordance with the Bank’s normal practice as revised from time to time, and the Bank’s records in this respect shall be conclusive.
(b) The EBS Service (i) shall only be used by Customer, (ii) shall only be used in accordance with these Terms and Conditions and any other instructions of the Bank in effect from time to time, and (iii) shall not be used to make any withdrawal or transfer from an Account exceeding the limit, if any, established by the Bank from time to time or exceeding the credit balance available to Customer in such Account. The EBS Service does not confer any right to overdraw an Account except as otherwise agreed by the Bank.
(c) Customer agrees that the EBS Security Code (i) shall be kept confidential at all times, (ii) shall not be written down, (iii) shall not be disclosed to any other person including but not limited to employees of the Bank, (iv) shall not contain information or data from any other personal identification number or security code selected and/or used by Customer together with the Bank’s debit or credit card or any other card issued now or in the future to Customer for the purpose of making transactions on an Account or any other account at the Bank in the name of Customer at banking machines and other banking card activated services, and (v) shall not be used with and/or repeated on a cellular or portable telephone device which Customer acknowledges does not guarantee complete privacy. If the EBS Security Code becomes known to any person other than Customer, that person will be deemed to be acting as the agent of Customer and, except as otherwise explicitly provided herein, the Bank does not accept responsibility for any resulting loss of funds.
(d) If Customer knows or has reason to suspect that the EBS Security Code may have been discovered by any other person, Customer shall give immediate written or oral notice (confirmed by notice in writing within 5 (five) days) of that fact to the Bank and immediately change the EBS Security Code in the Bank’s required manner. Unless and until such notice is received or the EBS Security Code is changed, the Bank is authorised to debit an Account for any sums withdrawn or transferred with the use of the EBS Service.
(e) If the EBS Security Code is disclosed to or known by any other person, or the Bank has reason to believe the same, the Bank may advise the police and give them such information as the police may require.
(f) All EBS Transactions are subject to verification and acceptance by the Bank. Any EBS Transaction processed after 5:00pm on any day will not receive value until the following Business Day. Customer acknowledges that any payment of bills executed by an EBS Transaction will not be processed by the payee until 3 (three) Business Days following the day an Account is debited for such EBS Transaction.
(g) The Bank shall not be liable for any delays, Losses or inconvenience, including but not limited to late fees and interest charges payable by Customer to another person, caused by the malfunction or operational failure of the EBS Service for any reason whatsoever. In addition, the Bank shall not be liable for any Losses suffered or incurred by Customer relative to or in connection with the use of the EBS Service, including but not limited to any Losses suffered or incurred by Customer as a result of any unauthorised access of an Account, by way of hacking, phishing or any other unlawful means. If a dispute arises with any person to whom funds were paid or transferred in an EBS Transaction, Customer shall settle such dispute directly with that person.
(h) The Bank may at any time without notice (i) withdraw its permission to Customer to use all or any part of the EBS Service and/or (ii) cancel and terminate all or any part of the EBS Service, in each case without being liable to any person for any Losses resulting therefrom.
(i) Customer may cancel and terminate the EBS Service at any time by 30 (thirty) days’ written notice, which will not be effective until it is actually received by the Bank. Any liability of Customer incurred in respect of or in connection with the EBS Service prior to any such termination shall continue notwithstanding such termination.
(j) The Bank may from time to time establish one or more limits for EBS Transactions, which may be changed at any time. These limits will be notified to Customer and/or programmed into the EBS Service. Thereafter, the use of the EBS Service at any time to execute an EBS Transaction shall be deemed to be acceptance by Customer of any such limit.
(k) The Bank may treat as correct and conclusive the transaction record produced by any computer or machine in respect of the EBS Service (the “Record”) at the time of each EBS Transaction, which will be deemed to be Customer’s written instructions, and Customer agrees to be bound by the Record and agrees that the Record may be used in any court of law.
(l) The Customer will pay on demand the Bank’s service charges applicable in respect of the EBS Service at the rates prevailing from time to time together with any other EBS Transaction charges and fees which may be levied from time to time, and all such amounts may be debited from any Account of Customer at the Bank without notice.
(m) Any information collected by the Bank in respect of Customer (including but not limited to any national insurance number or any similar or equivalent identification information) may be retained by the Bank and used by the Bank and its employees at any time (including after the termination of the EBS Service and/or if Customer is no longer a customer of the Bank) in relation to (i) the provision of the EBS Service by the Bank to Customer (including, but not limited to, the determination of Customer’s financial position) and (ii) the promotion of the EBS Service to Customer, and may be given by the Bank to any persons who have or may have a financial or other interest in or business dealings with Customer, including but not limited to any credit bureau.
10. Visa Cards
(a) By signing any Visa Card application form, Customer confirms its agreement, in the event that such application is approved by the Bank in its sole discretion, to the Bank (i) opening a corresponding Account and (ii) issuing the Visa Card applied for in Customer’s name and, to the extent any additional Visa Card is approved by the Bank in its sole discretion (each an “Additional Visa Card”), to any additional Visa Card holder referred to in such application (each an “Additional Visa Card Holder”).
(b) To the extent any Visa Card is issued by the Bank as described above, Customer confirms its agreement to, and undertakes to be bound by, these Terms and Conditions, any and all terms printed on the back of such Visa Card and the Visa Cardholder Agreement.
(c) To the extent any Additional Visa Card is issued by the Bank as described above, Customer shall (i) be liable for all charges incurred with respect thereto, (ii) procure compliance by each Additional Visa Card Holder with these Terms and Conditions, any and all terms printed on the back of such Additional Visa Card and the Visa Cardholder Agreement and (iii) indemnify and hold the Bank harmless from all Losses to the extent incurred by the Bank as a result of any non-compliance.
(d) To cancel a Visa Card, Customer must notify the Bank in writing, cut the Visa Card in half and return both halves to the Bank. To cancel an Additional Visa Card, Customer or the Additional Visa Card Holder must notify the Bank in writing, cut the Visa Card in half and return both halves to the Bank.
(e) In the event that the Visa Cardholder Agreement is terminated in accordance with its terms, all Visa Cards and Additional Visa Cards relating to the corresponding Account(s) will be cancelled automatically.
(f) By signing any Visa Card application form, Customer further (i) confirms that all statements and disclosures therein are true and correct and that all related transactions are and will be beneficially owned by Customer or, as the case may be, an Additional Visa Card Holder, (ii) authorises the Bank where necessary, whether at the time of the application or at any future time, to verify the source of funds by means of exchanges of information regarding Customer or, as the case may be, an Additional Visa Card Holder with other financial institutions, credit bureaus and other relevant persons and (iii) agrees to indemnify and hold the Bank, its affiliates and its subsidiaries harmless from all Losses to the extent incurred by the Bank, its affiliates or its subsidiaries as a result of any such exchange.
11. Withdrawals, Deposits and Rates
(a) The Bank may refuse to (i) accept a deposit to an Account for any reason and (ii) provide a cash withdrawal from an Account for any reason.
(b) The Bank is not obliged to pay cash to Customer in any currency other than Cayman Islands Dollars, irrespective of whether Customer has a Foreign Currency Account.
(c) The rates on foreign currency transactions may change at any time and are subject to market conditions at the time of execution, irrespective of any quote.
12. Standing Orders
(a) If there are insufficient funds to execute Customer’s standing order, Customer’s instruction may not be processed, and the standing order may be cancelled entirely after [3 (three)] failed attempts to process the same.
(b) Standing order instructions may be processed if the relevant Account is funded before the standing order is cancelled. The Bank is not responsible for any consequential Losses that may result from Customer having insufficient funds.
13. Joint Accounts
(a) If more than one person is the holder of an Account, then all such persons hold the Account as joint tenants, and not as tenants in common. Each Account holder will be treated equally, with no person having any greater rights or access to the Account, irrespective of whether the Account was opened jointly at first instance, or whether the Account was made joint after the Account was opened.
(b) Subject to paragraph (d) below, any one Account holder of a joint Account may give the Bank instructions in relation thereto, including with respect to withdrawing any portion of or the entirety of funds in such Account, signing cheques on such Account, accepting statements, documents, notices or other information relating to such Account, and making deposits to such Account.
(c) Irrespective of signature authority requirements (namely whether a joint Account requires one person to sign, or two or more persons to sign), upon the death or winding up of a joint Account holder, each surviving Customer continues as an Account holder until there is no surviving Customer, in which case the Account shall form part of the estate of the last surviving Customer only.
(d) Each Account holder must authorise the opening and closing of an Account, and the addition or removal of any other Account holder to such Account.
(e) Upon the closing of a joint Account, the proceeds of such Account will be disbursed as directed by all of the Account holders jointly, or in default, by cheque or bank draft payable to all Account holders jointly posted to the address on file with the Bank.
(f) Any liabilities and obligations owing to the Bank in respect of any joint Account shall be owed jointly and severally by the Account holders.
14. Communications and Instructions
(a) Customer requests the Bank to rely upon, and authorises the Bank to act upon, any Unauthenticated Instructions. The terms of any Unauthenticated Instructions (i) shall not alter any terms of the Services and (ii) shall be regarded as a request to the Bank and not an obligation upon the Bank to act in any manner whatsoever. In the event of any dispute between the Bank and Customer as to the substance and/or true meaning and effect of any Unauthenticated Instructions, the Bank’s recourse in connection therewith shall be deemed conclusive.
(b) Customer (i) waives all and any claims that Customer might otherwise have against the Bank on account of the Bank not having acted or having acted wrongly or mistakenly in accordance with any Unauthenticated Instructions for whatever reason, (ii) authorises the Bank to debit any Account in the name of Customer with such monies as shall have been authorised by any Unauthenticated Instructions and (iii) agrees to indemnify and hold the Bank harmless from all Losses to the extent incurred by the Bank as a result of the Bank not having acted or acted wrongly or mistakenly in accordance with any Unauthenticated Instructions for whatever reason.
(c) Customer consents to an audio recording of any telephone call, and the keeping of a record of any electronic communication, with the Bank. In the interests of security and preventing crime, the Bank may use closed-circuit television in and around its premises for the monitoring and collection of sound and/or visual images and Customer consents to such recording. All recordings remain the Bank’s sole property.
(d) The Bank may rely on all information provided by Customer with respect to any withdrawal, credit, debit, transfer, wire or payment instruction (including any routing or identifying names and numbers). The Bank has no duty to detect any inconsistency or error in such information. The Bank may correct any incorrect transactions upon its own discovery. Customer agrees to repay in full any amount which was credited in error to an Account.
(e) Customer is solely responsible for full routing instructions, and agrees that in executing any instructions, the Bank may make use of correspondents, agents, sub-agents, funds transfer and communications systems. If an instruction does not designate an intermediary bank where appropriate, the Bank will select an intermediary bank on behalf of Customer and the Bank shall have no liability with respect to such selection. To the fullest extent permitted by law, correspondents, agents, sub-agents, funds transfer and communications systems and intermediary banks shall be deemed to be agents of Customer, and the Bank shall not be under any liability for any errors, negligence, suspension or default of any of them, with all such risks being borne by Customer.
(f) The Bank shall be entitled, but not required, to verify further the authenticity of any authorised signature, other than by comparing it with the specimen on file. The Bank is not liable for the consequences of any forgery unless such forgery was readily detectable by reasonable observation.
(g) Unless otherwise specified herein, the Bank may provide a specific notice to Customer by mail, delivery, personal service, fax, posting an electronic message via online banking (if applicable), telephone or email, to any address, fax number, telephone number or email address (as the case may be) provided by Customer for such purposes, and for which the Bank does not receive a message indicating non-delivery. All notices to Customer shall be deemed to arrive on the 3rd (third) day after sending.
(h) All notices to the Bank will not take effect until actually received by the Bank at the branch of the Bank where the relevant Account is maintained or to any other address specified by the Bank in writing.
15. Dormant and Inactive Accounts
(a) An Account that has had no Customer-initiated transactions for 1 (one) year may be subject to inactivity fees as stipulated by the Bank from time to time. Customer may reactivate an Account in accordance with the Bank’s policies and procedures in effect at the relevant time.
(b) An Account that is inactive for 7 (seven) years or more may be subject to forfeiture to the Cayman Islands government pursuant to the Dormant Accounts Law (as revised).
(a) Customer will verify the correctness of all statements of account received from the Bank. If statement(s) and any relative vouchers are not received by the 10th (tenth) Business Day after the end of each month or, if the statement(s) is/are not prepared monthly, by the 10th (tenth) Business Day after the end of the term agreed on for their preparation, Customer will obtain them from the Bank.
(b) Customer will, within 30 (thirty) days following the time when such statements(s) and any relative vouchers should be received, notify the Bank in writing at the branch where the Account(s) is/are kept of any alleged omissions from, or debits wrongly made to, or inaccurate entries in, the Account(s) as so stated.
(c) At the end of the said period of 30 (thirty) days, such statement(s) shall be conclusive evidence without any further proof that, except as to any alleged errors of which the Bank has been so notified and any payments made on forged or unauthorised endorsements, the Account(s) contain(s) all credits that should be contained therein and no debits that should not be contained therein and that all entries therein are correct, and subject to the aforementioned exceptions, the Bank shall be free from all claims with respect to the Account(s).
(a) Subject to the requirement that each Account holder must authorise the opening and closing of an Account, and the addition or removal of any other Account holder to that Account, Customer may terminate and close an Account at any time upon written notice, effective only when such notice is actually received by the Bank.
(b) The Bank may withdraw or terminate any Account or any of the Services it offers to Customer at any time upon 15 (fifteen) days’ notice (or sooner in urgent circumstances), and need not provide any reason for doing so. The Bank will have no liability to Customer for any Losses or inconvenience that may result, except for Losses directly caused by the Bank’s gross negligence or wilful misconduct. In any event and under all circumstances, any liability of the Bank for such Losses shall be limited to Customer’s actual and direct Losses, and under no circumstances shall the Bank be liable for any consequential or indirect Losses.
(c) These Terms and Conditions shall survive the closure of an Account, or termination or withdrawal of the Services and will continue to apply with respect to determination of responsibility and resolution of all disputes for events, acts or omissions occurring before or circumstances existing as at the time of closure, termination or withdrawal.
18. Customer Information and Compliance
(a) The Bank will not disclose Customer Information to any person, other than where the Bank is legally required to disclose or has a public duty to disclose the same, or Customer has consented to such disclosure, or as otherwise provided in these Terms and Conditions.
(b) Customer Information may be requested by the Bank, collected from Customer or any person acting on Customer’s behalf, or from credit reference agencies or other financial institutions, or combined with other information held by any affiliate of the Bank. The Bank and its affiliates may collect, use and share Customer Information for proper business purposes, so long as confidentiality is maintained in accordance with these Terms and Conditions.
(c) Customer consents and agrees that the Bank may process, transfer and disclose Customer Information to (i) verify Customer’s identity or instructions and effect Customer’s instructions, (ii) perform Financial Crime Risk Management Activity, (iii) collect any money owed by Customer to the Bank, (iv) perform credit checks and obtain or provide credit references and/or (v) enforce or defend the rights of the Bank or any affiliate of the Bank.
(d) Customer further consents and agrees that the Bank may transfer and disclose Customer Information to (i) any affiliate of the Bank, any person who provides services to the Bank, and agents of any of the foregoing, (ii) any Authority pursuant to any applicable legal stipulations, (iii) any correspondent and agent banks, clearing houses and funds transfer or settlement systems, or service providers, as may be required, (iv) other financial institutions, fraud prevention agencies, trade associations, credit reference agencies and debt recovery agents, (v) any third party in connection with any reorganisation, sale or acquisition of the Bank or any affiliate of the Bank and/or (vi) third parties for marketing purposes where Customer has consented to marketing.
(e) Customer must (i) inform the Bank in writing of any change to Customer Information furnished to the Bank within 30 (thirty) days of such change and (ii) promptly provide such Customer Information as may be requested by the Bank from time to time.
(f) Notwithstanding any other provision of these Terms and Conditions or any other agreement or document referred to herein to the contrary, the Bank will not be liable for any Losses, irrespective of whether the same are direct or consequential and/or comprise loss of profit, data, interest or otherwise, suffered by any person arising out of (i) any delay or failure by the Bank or any of its affiliates in performing any of its obligations or duties under these Terms and Conditions, or in performing any other obligations or duties incumbent upon it, to the extent such delay or failure is caused in whole or in part by any steps which the Bank or, as the case may be, any of its affiliates, in its sole discretion, considers appropriate to take in accordance with any Compliance Obligations incumbent upon it or (ii) the exercise of any of its rights under these provisions concerning Customer Information and Compliance.
(a) Under the laws of certain jurisdictions, Customer may be required to report or comply with obligations imposed by such jurisdictions, including laws and regulations in respect of tax, foreign exchange controls, income and restrictions on trade. Customer and any Connected Person is solely responsible for complying with its own legal and tax obligations, including the payment of tax and the filing of tax returns, in all countries where those obligations arise to the extent relating to the opening, maintaining and use of Accounts and Services provided by the Bank. As a condition of opening, maintaining and using any Account with the Bank, Customer acknowledges and agrees that it does and will comply with any and all such relevant obligations. Customer agrees to indemnify and hold the Bank harmless from all Losses to the extent incurred by the Bank as a result of any breach by Customer of its obligations hereunder.
(b) If Customer does not promptly respond to any request by the Bank for Customer Information, or seeks to prevent the Bank from disclosing, transferring or processing Customer Information as provided in these Terms and Conditions, or if the Bank suspects Financial Crime, then the Bank may (i) cease providing all or part of the Services, (ii) block or close any related Account, (iii) terminate its business relationship with Customer and/or (iv) levy such charges and fees in respect of any of the foregoing as the Bank may deem appropriate in its sole discretion.
(c) If Customer does not provide accurate Customer Information upon request, the Bank may make its own decision regarding Customer’s tax status. This may result in, and Customer agrees that the Bank may, report any relevant information to a Tax Authority and/or withhold any required amounts from an Account to pay over to a Tax Authority in accordance with applicable law.
20. Indemnification and Liability
(a) Notwithstanding any other provision of these Terms and Conditions, Customer agrees to indemnify and hold the Bank harmless (and permits the Bank to debit any Account of Customer with respect to any amounts falling due from Customer pursuant to the terms hereof) from all Losses, including legal fees and expenses, the Bank may incur in dealing with any issue in relation to an Account, including but not limited to taking any steps to recover any sum due from Customer, any matter arising out of Customer’s business with the Bank, responding to any process or order issued by any Authorities, addressing any government directive, any enhanced or further due diligence, or any research, retrieval and production of information or documents.
(b) Customer agrees that the Bank shall not be liable for any Losses with respect to an Account, except for Losses directly caused by the Bank’s gross negligence or wilful misconduct. In any event and under all circumstances, any liability of the Bank for such Losses shall be limited to Customer’s actual and direct Losses, and under no circumstances shall the Bank be liable for any consequential or indirect Losses.
(a) The Bank may, in its discretion, hold, freeze, or restrict any funds deposited to an Account, and defer Customer’s ability to withdraw funds represented by a deposit (i) until the Bank is in actual and irrevocable receipt of funds in respect thereof and, if required, satisfactory documentary evidence as to source of funds and/or (ii) if the Bank is made aware of unusual, suspicious or alleged criminal activity in relation to an Account, or any judicial proceeding that may give rise to a claim against or cause a Loss to Customer, the Bank, or an identifiable third party, and in no circumstances shall the Bank be liable for any Losses resulting therefrom.
(b) Customer agrees to produce any additional documentation or information that the Bank may require to verify the purpose or source of any transaction, or to satisfy any proper request from a correspondent bank.
(c) Unless the Bank explicitly agrees otherwise in writing, Customer may not grant anyone other than the Bank any security interest in any funds in an Account, whether by assignment, hypothec, charge, transfer or otherwise.
(d) Customer acknowledges that the Bank does not provide and is not qualified to advise on legal or tax matters and Customer confirms that the Bank has not rendered any such advice. The Bank recommends that Customer should obtain its own independent legal and tax advice from relevant professionals on matters affecting Customer and Customer’s Account(s) in all jurisdictions where Customer may be subject to the laws thereof.
22. Construction and Other Matters
(a) In these Terms and Conditions:
i. clause headings are included for convenience only and shall not affect the interpretation of these Terms and Conditions;
ii. words denoting the singular number only shall include the plural and vice versa;
iii. use of any gender includes the other genders;
iv. reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated, and all statutory instruments or orders made pursuant to it;
v. words denoting persons shall include natural and legal persons as the context may require;
vi. any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words following those terms;
vii. references to any document or agreement are to be construed as references to such document or agreement as is in force for the time being and as amended, varied, supplemented, substituted or novated from time to time; and
viii. reference to a time of day shall be to local time in Grand Cayman, the Cayman Islands.
(b) No delay or omission on the part of the Bank in exercising any right or remedy under these Terms and Conditions shall impair that right or remedy or operate as or be taken to be a waiver of it nor shall any single, partial or defective exercise of any such right or remedy preclude any other or further exercise under these Terms and Conditions of that or any other right or remedy.
(c) The Bank’s rights, powers and remedies under these Terms and Conditions are cumulative and are not, nor are they to be construed as, exclusive of any rights, powers or remedies provided by law or otherwise and may be exercised from time to time and as often as the Bank reasonably deems expedient.
(d) If at any time any one or more of the provisions of these Terms and Conditions is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of these Terms and Conditions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall be in any way affected or impaired as a result.
(e) Nothing in these Terms and Conditions shall confer any rights on any third party under The Contracts (Rights of Third Parties) Law, 2014.
(f) Customer may not assign or transfer any of its rights or obligations hereunder. The Bank may assign and transfer its rights and obligations hereunder to any affiliate of the Bank.
23. Governing Law and Jurisdiction
(a) These Terms and Conditions are governed by, and shall be construed in accordance with, the laws of the Cayman Islands.
(b) Customer irrevocably agrees for the benefit of the Bank that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any suit, action or proceeding and to settle any dispute which may arise out of or in connection with these Terms and Conditions, and for such purposes Customer irrevocably submits to the exclusive jurisdiction of such courts.
(c) The Bank shall not be prevented from taking proceedings relating to a dispute which may arise out of or in connection with these Terms and Conditions in any other jurisdiction. To the extent permitted by law, the Bank may take concurrent proceedings in any number of jurisdictions.