Account Agreement (General terms and conditions)
1. DEFINITIONS
“Account” means each and every bank account that you have opened with the Bank.
“Account Agreement” (or “Agreement”) means this account agreement (general terms and conditions) as amended from time to time by the Bank.
“Affiliate” means (a) any subsidiary or related company by way of common ownership, (b) any Group Companies, and/or (c) each of their directors, officers, employees, agents, successors and assignees from time to time.
“Authorized Signatory” means any person authorized to give instructions on an Account in accordance with clauses 2 or 11 herein.
“Bank” or “we” or “us” or “our” are references to EQIBank Limited of 24 Hillsbourough Street, Suite II, Rosseau, Commonwealth of Dominica and its successors, assigns and transferees (and including where applicable its Affiliates and the Bank trading as “Holdun” or “Holt”).
“Business Day” means any day that is not Saturday, Sunday or other day on which commercial banking institutions in the Commonwealth of Dominica, the United States of America, the United Kingdom, the European Union, Switzerland or the Cayman Islands are closed for the purpose of conducting commercial banking business.
“EQIOBS” means the Bank’s online banking system which provides internet access to Accounts held at the Bank.
“Online Banking Service Terms and Conditions” means the agreement governing the use of EQIOBS.
“Group Companies” means the Bank, EQITrade Limited, EQITech SEZC Limited, EQI Holdun Exchange Limited, and EQIFi Limited.
“Indemnified Party” means each of the Group Companies and their respective directors, officers, employees, agents, successors and assignees from time to time and your Introducer (if any) and its Affiliates.
“Instructions” means any notice, demand, instruction or other communication given by telephone, facsimile and/or electronic mail by any Authorized Signatory or purported to be given by any Authorized Signatory.
“Introducer” means, if applicable, the relevant firm that the Bank has recognised as having introduced you to the Bank.
“Overdraft Limit” means the overdraft limit that the Bank has set for an Account.
“You” and “your” means the individual, partnership, corporation, association or trustee who signed the Account Application.
2. ACCOUNT AGREEMENT
2.1. This Agreement contains the terms and conditions governing your Account with the Bank and explains our obligations to you and your obligation to us. These terms and conditions apply to your Account with the Bank and any services or products the Bank provides in connection with your Account. This Agreement extends to and includes any persons, including your agents/third parties, you authorize to give instructions on your Account (Authorized Signatories). It replaces any previous account agreement(s), regulations or terms and conditions for conducting business with the Bank. The procedures you must follow for the Bank’s computer banking services are contained in the Online Banking Service Terms and Conditions (EQIOBS).
2.2. Your agreement with the Bank is contained in: (a) this Account Agreement (General Terms and Conditions); (b) the additional conditions (as described in 3.1); (c) the Account Application; (d) the Website Terms of Use; (e) the Online Banking Service Terms and Conditions (EQIOBS); (f) specific terms for particular products such as over-the-counter transactions (OTC); (g) the Privacy Notice; (h) the Data Protection Notice; and (i) the FATCA & CRS Notice.
3. GENERAL CONDITIONS
3.1. The additional conditions include our charges and the interest rates, notice periods, minimum or maximum balances and other terms which are specific to a particular Account, service or product. The Bank will inform you what these additional conditions are when you open an Account or apply for a new service or product. Details of these are set out in our service descriptions or may be published on our website.
3.2. If the additional conditions are inconsistent with these general terms and conditions, the additional conditions will apply to the extent of any such inconsistency.
3.3. If a transaction is made on an Account, you will be deemed to have received, read and understood this Agreement and to have agreed to be bound by these terms and conditions.
3.4. The Bank reserves the right to use its unfettered discretion: to refuse to take a deposit, to decline to open an Account, to provide the service or to require you to close Account (s), in each case without giving a reason for its decision.
4. USE
4.1. The Account may be used for the purposes of carrying on a legitimate business or enterprise.
4.2. You undertake and agree to provide the Bank with all information requested by the Bank in relation to the source of funds, operation of the Account and identification of beneficiaries, Client Administrators, Designated Users, and Authorized Signatories as the Bank may request or require from time to time.
4.3. You authorize the Bank to debit the Account with any and all sums payable pursuant to the instructions and confirm that the Bank has the absolute discretion to refuse to process any transaction or to accept any deposit to an Account without explanation or justification.
5. JOINT ACCOUNTS
5.1. In the case of a joint Account, the rights and obligations under this Agreement of all the Account holders shall be joint and several. The Bank shall be entitled to accept instructions from and for all purposes deal with any one of such persons as agents for all of them. Unless the Bank receives notice in writing from you to the contrary, all Account holders are deemed to be joint tenants of the whole Account.
5.2. In the case of conflicting instructions or communications from you, the Bank shall be entitled to deal on the first instruction or communication received.
6. SERVICE CHARGES
6.1. You agree to pay the Bank’s service charges which may be varied from time to time by the Bank.
6.2. Unless otherwise stated, the service charges and interest that apply to an Account are payable in the currency in which the Account is maintained and you authorize the Bank to automatically debit all such service charges from the Account.
7. OVERDRAFT FACILITY
7.1. Unless an overdraft facility is provided (pursuant to our express written consent) you must keep each Account in credit.
7.2. The Bank may provide you with an overdraft facility on the Account on such terms and conditions as to security, operation and fees as it determines in its absolute discretion. The terms of the facility, the limit and the interest rate and other charges which you must pay and any other conditions will be confirmed to you in writing.
7.3. The Bank may make any searches and enquiries which we think are appropriate when you apply for banking services or to borrow or if we wish to consider increasing the overdraft facility or offer you any other products now or in the future.
7.4. If you (a) overdraw the Account without agreeing to an overdraft facility with us or (b) exceed the agreed overdraft limit, the Bank may ask you to make an immediate payment into your Account even if we have acted on an instruction, at our sole discretion, which takes your borrowing over the agreed limit. We will charge our authorized interest rate and fees on the amount of the overdraft or excess until either it has been repaid or we have specifically agreed an overdraft or an increased limit with you.
7.5. The Bank may, in its sole discretion, refuse to honor any payment instruction where there are insufficient funds in the Account to make the payment (including the Bank’s fees) or where the payment would exceed an Account’s overdraft facility even if the Bank had previously honored payment instructions that resulted in the overdraft facility being exceeded.
8. SET–OFF AND APPLICATION OF FUNDS
8.1. In consideration of the Bank providing you with banking services and facilities, you agree that in addition to any right of set-off or other general lien or similar right to which the Bank may be entitled in law, the Bank may use any amounts you have on any Account in any currency to reduce or repay any amounts you may owe us (including all costs, charges and expenses incurred in any way in relation to this Agreement, including legal fees of the Bank related to any dispute, injunction or regulatory action concerning the Account) on any Account, either in your own name or jointly with anyone else, the Bank will notify you promptly if it does this.
8.2. To secure the payment and performance by you of all obligations to the Bank and its Affiliates, the Bank may apply the funds on deposit in an Account (and/or your assets held or deposited with an Affiliate) against any debt or obligation owed to the Bank or any Affiliate (upon receipt of proof of debt from the Affiliate in form satisfactory to the Bank in its absolute discretion) by you (or any one of you if the Account is jointly owned), without notice to you. Amounts held in different currencies (whether fiat, digital or crypto currencies) may be converted by the Bank at its discretion into another currency, in order to facilitate netting and set–off, at reasonable rates available for retail customers as determined by the Bank in its absolute discretion.
9. FOREIGN CURRENCY ACCOUNTS
9.1. You assume full and complete responsibility and liability for any decrease in the value of funds credited to the Account (which may be deposited at the Bank or in the name of the Bank with such depository and in such place as the Bank may in its absolute discretion select) due to taxes or depreciation and the unavailability of such funds due to restrictions on convertibility, requisitions, injunctions, involuntary transfers, or any other causes of any nature beyond the control of the Bank.
10. TRUST ACCOUNTS
10.1. You hereby appoint any two authorized signatories of the Bank to be your attorney in fact solely for the purpose of transferring funds on deposit in any Account at the Bank to any fiduciary account approved by the Bank from time to time and held in the name of the Bank or its Affiliates as trustee for you for purposes of capital management by the Bank.
11. AUTHORIZED SIGNATORIES
11.1. You shall appoint any reasonable number of persons or entities as Authorized Signatories on an Account by completing the Bank’s Authorized Signatory form and the proper corporate authority (where the Account holder is a corporation, partnership or trust). All person(s) or entities designated as Authorized Signatories shall be your agents and attorneys in fact to conduct business with the Bank.
11.2. No person may give any instruction to the Bank in relation to an Account until they have been appointed as an Authorized Signatory in accordance with the Bank’s procedures and submitted required due diligence and documentation to the Bank.
11.3. You undertake in the event that an Authorized Signatory is removed or replaced or the signing authority varied, to immediately deliver to the Bank a replacement Account Signature form containing sample signatures of all persons authorized to sign on an Account. Until the Bank acknowledges receipt of such replacement Account Signature form, you agree to indemnify and hold harmless the Bank and each Indemnified Party against any and all claims, actions, demands, liabilities, costs, charges, damages, losses, proceedings, expenses and consequences of whatever nature and howsoever arising by reason of the Bank acting on the instructions of any Authorized Signatory who has been removed prior to the Bank’s written acknowledgement.
12. INSTRUCTIONS
12.1. The Bank reserves the right not to act on Instructions which it deems in its absolute discretion to be unclear, ambiguous, contradictory, erroneous or improper. You agree that the Bank will not be liable for any loss due to any delay or for any failure to act on such Instruction.
12.2. Notwithstanding any terms of this Agreement, or course of dealings between you and the Bank, the Bank shall be entitled to rely solely upon and act in accordance with Instructions given or purported to be given by any Authorized Signatory without further enquiry on the Bank’s part (whether as to the authority or identity of the person making or purporting to give such Instructions, the reasonableness of the Instructions, or any other consideration) regardless of the circumstances prevailing at such time. The Bank shall be entitled (but not required) to take such steps in connection with or in reliance upon the Instructions as the Bank may in good faith consider appropriate (regardless of the nature of the Instructions and whether such Instructions include instructions to pay money or otherwise to debit or credit any Account, or relate to the disposition of any money, securities or documents, or purport to bind you to any agreement or other arrangement with the Bank or with any other person or to commit you to any other type of transaction or arrangement whatsoever), regardless of the nature of the transaction or arrangements or the amount of money involved and not withstanding any error or misunderstanding or lack of clarity in the terms of such notice, demand or other communication.
12.3. You agree that the Bank shall not be liable for any loss incurred by you as a result of the Bank relying on any Instructions pursuant to Clause 12.2 and you agree to indemnify the Bank and each Indemnified Party for any losses incurred by the Bank as a result of reliance on such Instructions.
12.4 Moreover, and in addition to the above, where you provide the Bank with instructions to transfer ERC-20 tokens, alternative tokens, digital assets or crypto-currency to a particular electronic wallet address (a “Wallet”) it is your responsibility to ensure not only that the Wallet address is correctly identified in your Instructions but also that the Wallet is capable of and permitted to receive such transfer. Any transfers the Bank facilitates that are directed to a Wallet pursuant to your Instructions are made entirely at your risk. You should note that a Wallet may not be capable of accepting transfers if, inter alia: (i) the Wallet is directly associated with an exchange; and/or (ii) the transfer is from an unknown address.
12.5 Further to the above, where you instruct the Bank to convert fiat currency into crypto-currency (or vice versa) or to convert between fiat currencies or between crypto-currencies, the conversion is subject to exchange rate fluctuations unless completed within the stated timeframe (usually no more than a maximum of one minute), and the speed at which such conversions are in fact completed (and the exchange rate risk associated with the conversion) is at your sole risk and outside of the control of the Bank.
12.6 Where you give instructions to the Bank which involve, necessitate or require the Bank to execute some or all of a transaction with a third party there can be no certainty that the transaction can be completed in a timely manner or at all. The Bank reserves the right (but not the obligation) to execute such transaction(s): (i) in lots smaller than the requested amount; (ii) via multiple sources of liquidity; and (iii) in part only (where the Bank determines in its absolute discretion at any time that there have been significant movements in the relevant exchange rates).
13. HOLD ON FUNDS
13.1. The Bank has the right to hold any cheque, instrument or other item deposited to an Account, and to defer your right to withdraw funds represented by such a deposit until the Bank receives payment for the cheque, instrument or other item. In the event that the Bank becomes aware of a dispute as to the beneficial ownership of any deposit or asset the Bank may restrict activity on the relevant Account (and on others that it determines in its absolute discretion are related to it) until the dispute has been settled to the satisfaction of the Bank.
14. INTEREST AND CHARGES
4.1. Interest is normally payable on a daily basis on the amount of the cleared balance on each Account at the end of the day. Interest or, if applicable, interest charges and fees are payable in arrears by crediting or debiting your Account.
14.2. We reserve the right to charge for additional services and to vary interest rates and charges from time to time.
14.3. The Bank may debit an Account at any time if a cheque, instrument or other item is dishonored or unpaid for any reason. You waive: presentment for payment, notice of dishonor, protest and notice of protest on all cheques, and other items requiring such action.
15. STATEMENTS
15.1. The Bank will provide statements showing all amounts credited to or debited from your Account since the previous statement.
15.2. You agree to promptly examine all entries and the balance recorded in each Account statement and undertake to notify the Bank in writing of any errors, omissions or corrections shown on any Account Statement within 30 days of the date of the Account statement. You also agree to notify the Bank promptly in writing of any changes to your name and/or address.
15.3. The Bank may put messages on your statements to notify you of changes to this Agreement.
15.4. You undertake to immediately notify the Bank in writing upon suspecting or becoming aware that: (a) a document or transaction relating to an Account is improper or has been forged (and to provide the Bank with complete documentation in this respect); or (b) bank statements or other communications which you expect to receive from the Bank have not in fact been received by you, in each case so as to enable to Bank to investigate and take proper action.
15.5. If you do not notify the Bank as required in section 15.2 and 15.4 The Bank is entitled to treat any Account balances, entries and transactions in respect of the period covered by the statement as correct and binding on you and the Bank will be released from all claims by you in respect of errors or omissions during the period.
16. USE OF ACCOUNT AS COLLATERAL
6.1. You may not give anyone other than the Bank a security interest in any funds in an Account whether by assignment, charge, transfer or otherwise (and any such purported security interest shall be void ab initio) without the prior written consent of the Bank.
17. AMENDING THIS AGREEMENT
17.1. The Bank may change the terms of this Agreement (including our charges) and may introduce changes to our service(s) from time to time upon notice to you. Changes will normally be caused by market conditions, changes in the cost of providing a service to you, changes in legal or other requirements affecting us, or any other good reason. Apart from changes to our interest rate and other matters which can apply immediately, at the discretion of the Bank up to 30 days’ prior written notice of any changes will be given. If you use an Account or have funds on deposit in the Account after the effective date of the change, you will be deemed to have accepted such changes in their entirety.
18. EQIOBS AND OTHER SERVICE AGREEMENTS
Any service that the Bank provides to you other than the services described in this Agreement (including EQIOBS) shall be provided in accordance with separate service agreements or similar document.
19. COMMUNICATIONS
19.1. The Bank will send monthly statements of Account, where applicable, and all other communications concerning the Account and this Agreement to you by ordinary mail, facsimile or by email in accordance with your written election.
20. TERMINATION
20.1. In exceptional circumstances the Bank may at any time suspend the operation of any or all of the services it provides to you, but the Bank will promptly notify you of any such suspension with or without justification or explanation.
20.2. You may close an Account by written notice to the Bank. In the case of joint Accounts, the Bank may request the instruction of all the Account holders.
20.3. The Bank may withdraw the provision of any service without terminating this Agreement by giving you 30 days’ prior notice in writing (which may be provided by email to the email address associated with your Account). You will continue to be liable in respect of all liabilities outstanding or arising after the service is withdrawn which relate to the period before withdrawal.
20.4. The Bank may take action to close an Account immediately without explanation for any reason, including if the Bank reasonably believes that (a) you are not eligible for the Account; (b) you have given us any false or misleading information at any time; (c) you or someone else is using the Account illegally or without authorisation; (d) you have been in serious or persistent breach of this Agreement or any additional conditions which apply to the Account; (e) you have become bankrupt or insolvent as either term is interpreted under the laws of the Commonwealth of Dominica; (f) for any other good reason.
20.5. The Bank may end the banking relationship with you or close the Account (a) with 30 days’ notice in writing if the Account balance drops below the amount stipulated by the Bank from time to time or (b) at any time in its absolute discretion without justification or explanation.
20.6. We can at any time, without getting your consent (a) assign, novate or transfer all or any of our rights and benefits, and transfer any of our obligations, under this Agreement to any person, firm or company or (b) sub-participate or sub-contract any of our rights or obligations under this Agreement.
20.7. On closing the Account, the Bank will be deemed to have satisfied its obligation to return your funds net of all fees and expenses and payable to you by sending a bankers’ cheque to your last known address or place of business notified to the Bank. In this regard the Bank may apply the provisions herein concerning set-off and netting.
20.8. Termination of this Agreement shall be without prejudice and shall be subject to the proper settlement of all transactions and the Bank will complete and settle such transactions as soon as practicable.
20.9. The indemnity provisions of this Agreement (and of the supplements hereto) shall survive termination of this Agreement.
21. REPRESENTATIONS AND WARRANTIES
21.1. You represent and warrant:
(1) that the opening of the Account has been properly authorized and the Authorized Signatories have been properly appointed (a) by the directors (in the case of a company), (b) by the general partner (in the case of a Partnership), (c) by the trustee (in the case of a trust or (d) by the beneficial owners of the Account (in the case of an individual) and that such authority has not been amended, modified or revoked; and
(2) if you are a company, partnership or trust, that the company, partnership or trust (as the case may be) is validly existing and in good standing.
21.2. You represent to the Bank that appropriate legal and tax advice has been taken from professional legal and/or tax advisors with respect to the establishment and operation of the Account in all applicable jurisdictions. You acknowledge that you may not rely on any discussions (if any) with the Bank concerning legal or tax matters and that the Bank shall not be liable for any such reliance.
22. INDEMNIFICATION
22.1. Neither the Bank nor any Indemnified Party shall be liable for any loss arising from errors of fact or judgment or any action taken (or omitted to be taken) by the Bank under this Agreement howsoever arising except to the extent that such error or action (or omission thereof) is due to the Bank’s own fraud, willful default or gross negligence as determined after final adjudication.
22.2. No Indemnified Party shall be liable for the failure of a custodian or counter-party or any person, firm or company through which transactions for the Account are effected (or of any clearance or settlement system), or their failure to deliver necessary documents or failure to Account for any transactions on securities. No Indemnified Party shall be liable for any default of any custodian, counter-party, bank or other person or entity, which holds money, investments or documents or title.
22.3. The Bank shall not be required or entitled to take any legal action on your behalf or otherwise in respect of the Account other than on such terms as the Bank may in its absolute discretion agree and unless fully indemnified to the Bank’s reasonable satisfaction for all costs and liabilities in connection therewith.
22.4. You acknowledge that the Bank and each Indemnified Party shall not be liable for any loss or damage arising directly or indirectly out of or in connection with the operation of the Account unless such loss or damage arose out of or in connection with the Bank’s own fraud, willful default or gross negligence as determined after final adjudication.
22.5. You undertake and agree to indemnify, keep indemnified and forever hold harmless each Indemnified Party to the fullest extent permitted by law against all actions, proceedings, claims, demands, liabilities, losses, damages, costs expenses (including legal and professional fees and expenses arising therefrom or incidental thereto) and consequences of any kind or nature whatsoever which may be imposed on, incurred by, asserted against, an Indemnified Party or that an Indemnified Party may suffer, incur, sustain, directly or indirectly of whatever nature and howsoever arising in connection with the operation of the Account other than by reason of the Bank’s own fraud, willful default or gross negligence as determined after final adjudication.
22.6. Termination of this Agreement shall be without prejudice and shall be subject to the proper settlement of all transactions and the Bank will complete and settle such transactions as soon as practicable.
22.7. The indemnity provisions of this Agreement (and any supplements hereto) shall survive termination of this Agreement.
23. CONFIDENTIALITY
23.1. The Bank shall keep confidential all documents, materials and other information relating to you and the Account and it shall not, without your prior written consent, disclose any of the aforesaid unless we have a duty to do so or if we are permitted to do so by law.
23.2. Subject always to a duty of confidentiality, we may provide information about you or how you manage your Account to: (a) our professional advisers; (b) anyone to whom we transfer (or may transfer) our rights and duties under this Agreement; and (c) our Affiliates, successors, assigns, agents, directors, officers and employees.
23.3. If the Bank transfers your information to a service provider or agent (including its Affiliates) in another country or jurisdiction, the Bank will ensure that the service provider or agent agrees to the same levels of protection as the Bank applies to information held in the Commonwealth of Dominica and to use your information only for the purpose of providing the service to the Bank.
23.4. Notwithstanding clause 23.1, the Bank shall not be liable for information passed in the normal course of business. You specifically authorize the Bank to back up or copy any and all data related to you and the Account to any jurisdiction outside of the Commonwealth of Dominica (including without limitation the United States of America) as the Bank in its absolute discretion shall determine and to operate the Account or back-office functions relating to the Account from such jurisdiction on a temporary or permanent basis.
23.5. You hereby authorize the Bank and any agent or service provider to use, verify and confirm any and all information that you or your agent provides including, obtaining reports concerning you and your principal’s background, credit standing on business conduct and to share all such information with their successors, assigns, agents and service providers to determine your eligibility for an Account.
24. MISCELLANEOUS
24.1. The Bank may collect credit and other information about you from any source and may use this information to establish and maintain a banking relationship with you. The Bank may provide credit and other financial information about you to Affiliates for the purpose of offering their products.
24.2. The Bank shall not be responsible for any loss or damage to any of your property, investments, securities, instrument, other assets or for any failure to perform any of the Bank’s duties under this Agreement, if such loss, damage or failure is directly or indirectly caused by or due to any act of God, storm, hurricane, earthquake, accident, fire, water damage, riot, civil commotion, rebellion, strike, pandemic, epidemic, currency restrictions, lock-out, government or military action, acts of war or terrorism, force majeure, or any breakdown, failure, interruption or malfunction of any telecommunications or computer service or systems provided that the Bank uses reasonable efforts to minimize the effects of the same.
24.3. This Agreement is personal to you and a person who is not a party to this Agreement will have no rights to enforce any of its terms. None of your rights, benefits or obligations relating to this Agreement or any service provided under its terms may be assigned by you without the prior written consent of the Bank.
24.4. If any joint Account holder dies, the survivor(s) may withdraw the balance on the Account.
24.5. Any waiver of a breach of any term of this Agreement shall not affect the Bank’s rights in the future in respect of any further breach of that or any other term.
24.6. This Agreement contains the entire agreement with you in respect of the services provided under it and to the extent permitted by law. No representation or warranty shall be implied or have any effect unless specifically included in the Agreement, the additional conditions and in any changes subsequently notified to you from time to time.
24.7. If any provision of this Agreement is or becomes invalid or contravenes any applicable law, the remaining provisions shall remain in full force and effect and you agree that (a) the provision in question shall be altered only in so far as to make it valid or in accordance with applicable law, and (b) terms of this Agreement shall be interpreted in such a way as to be consistent with applicable law.
25. SCHEDULE OF CHARGES-BREAKAGE
All Call, Notice and Fixed Term products will be subject to breakage fees equal to the cost of replacement funding, as determined at the Bank’s sole discretion, in addition to a breakage fee of up to 3% (minimum of US$250).
26. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Dominica and you hereby irrevocably submit to the jurisdiction of the courts of the Commonwealth of Dominica on any and all matters relating to this Agreement (or to the operation of the Account) and to arbitration in accordance with the Website Terms of Use.