Terms of Use for Primacy Online

These terms and conditions govern the use of Primacy Online to access the segregated client account details ("Segregated Account Details") of the client money account maintained by Capital Security Bank Limited ("CSB").  By accessing the Website the Client agrees to be bound by the terms and conditions set out below (the "Terms of Use").  Before accessing the Client's Segregated Account Details using the Service the Client must send CSB a New User Registration Form which has been signed by an authorised signatory of the Client.  If the Client does not agree to the Terms of Use then it may not access the Client's Segregated Account Details using the Service.     

1            The Service to be Provided

Primacy Online is being provided to Authorised Users (as defined below) of the Client for the sole purpose of enabling the Client to access the Client's Segregated Account Details (the "Service").  Until otherwise notified, the Service does not enable the Client to execute any transactions in connection with the Account.  All transactions in respect of the Account must be executed in accordance with the Client Money Account Agreement entered into between the Client and CSB (or any other agreement in respect of the Account that may have been entered into between the Client and CSB from time to time) (each a "Client Money Account Agreement"). 

2              Intellectual Property

2.1          All property rights in the Primacy Corporation proprietary software that is used to provide the Service (the "Software") and any materials provided to the Client in connection with the Software remain the property of Primacy Corporation or CSB, as the case may be, and are protected by Canadian copyright laws and the copyright laws of other countries.  The Client acknowledges that CSB licenses the Software from Primacy Corporation and that the Service is provided subject to the terms of any licence agreements that apply to CSB from time to time.

2.2          The Client acknowledges and agrees that the Website (as defined below) may contain trademarks and proprietary materials belonging to third parties and that no rights are granted in respect of those trademarks or proprietary materials except as otherwise expressly provided for in these Terms of Use.

3              Access

3.1          CSB grants to the Client, for personal or internal business purposes only, a limited, non-exclusive and revocable right to access the Client's Segregated Account Details using the Service.  The Client will be given access to the Service using such website as may be designated by CSB from time to time ("Website").

3.2          The Client will complete a New User Registration Form which must be signed by an authorised signatory of the Client and sent to CSB.  Following the receipt by CSB of the signed New User Registration Form the Client will be issued with a username and password which will be sent to the Client at the email address specified in the New User Registration Form (the "Address").  CSB shall retain all property rights to the Client's username and password and may change or revoke the Client's username and password for any reason whatsoever.  Access to the Client's Segregated Account Details using the Service shall be deemed to constitute a representation to CSB by the user that he/she has been authorised by the Client to access the Account using the Service.

3.3          It is the Client's sole responsibility to keep its username and password secret and confidential and to ensure that all persons authorised by the Client to have access to the Client's Segregated Account Details using the Service ("Authorised Users") keep the username and password secret and confidential .  The Client acknowledges and agrees that each person who gains access to the Service using the Client's username and password will be given access to the Client's Segregated Account Details regardless of whether that person is an Authorised User.  CSB shall be under no obligation to verify the authority of a person accessing the Service using the Client's username and password.  The Client bears all risks arising in relation to access being granted to the Service and to the Client's Segregated Account Details using the Client's username and password, and from the use, misuse or disclosure of the Client's username and password.

3.4          The Client must ensure that CSB is immediately notified if: (i) the Client's username and/or password is disclosed to a person who is not an Authorised User; (ii) an Authorised User ceases to be employed by the Client; or (iii) the Client becomes aware of any unauthorised access to the Client's Segregated Account Details using the Service (each a "Security Breach").  The notice to be provided by the Client pursuant to this clause must be in writing, must include particulars of the relevant Security Breach including the date(s) of each Security Breach, and must include details of any action requested by the Client of CSB to address the Security Breach including a request to terminate or suspend the service or to change the Client's username and password.

3.5          The Client acknowledges and agrees that the Service can only be terminated, suspended, limited or blocked during CSB's office hours.  Any request to terminate, suspend, limit or block the Service must be made to the CSB representative responsible for the Client's account.  Without limitation to clauses 3.3 and 3.4, the Client acknowledges and agrees that notwithstanding any request made by it pursuant to this clause, the Client shall bear all risks arising as a result of access to the Service or the Client's Segregated Account Details during such period as may be required by CSB to terminate, suspend, limit or block the Service.

3.6          CSB reserves the right to terminate, suspend, limit or block access to the Service for any reason whatsoever and without prior notice.  The Client acknowledges and agrees that access to the Service may be interrupted or unavailable and that CSB may interrupt the Service for any reason whatsoever.  CSB will not be liable for any interruption to, or the unavailability of, the Service for any reason whatsoever. 

4              Notices

4.1          Any notice or other communication may be sent by CSB to the Client by email to the Client's Address.

4.2          The Client acknowledges and agrees that e-mail communication is not secure and can be subject to possible delay, data corruption, interception, amendment or loss and that CSB will not be responsible for the unauthorised interception, redirection, copying or reading of e-mails from the Client's Address (including any attachments).

4.3          The Client must ensure that the CSB representative responsible for the Client's account is immediately notified in writing of any change to the Client's Address. 

5              Data Protection and Security

5.1          The Client is solely responsible for obtaining and maintaining all hardware, software, telecommunication links and internet services required to use the Service. 

5.2          The Client shall bear all risks (including without limitation risks of damage to the Client's hardware, software, telecommunication links, internet services, networks and information systems) arising out of its use of the Service, access to the Website, any material downloaded from the Website or any emails or attachments sent to the Client's Address and acknowledges and agrees that there is a risk that a computer virus could contaminate the Client's information systems and hardware and/or unauthorised persons could gain access to the Client's information systems and hardware as a result of its use of the Service, access to the Website, any material downloaded from the Website or any emails or attachments sent to the Client's Address.  The Client shall take all necessary security precautions to protect itself against risks to its information systems and hardware, including without limitation the use of virus protection software and the proper disposal of its obsolete hardware.

5.3          CSB does not warrant that that the use of the Service, access to the Website, any material downloaded from the Website, or any emails or attachments sent to the Client's Address will not cause damage to any property including, without limitation, loss of data or errors or malfunctions in any of the Client's information systems or hardware.

6              Accuracy

6.1          The Client acknowledges and agrees that no representation or warranty is made by CSB as to the accuracy, reliability, timeliness or completeness of the Client's Segregated Account Details as disclosed using the Service. 

6.2          Without limitation to the above, the Client acknowledges and agrees that the Service may not include real time information about the Client's Segregated Account Details and that there may be delays in the processing of transactions affecting the Account.  The Client further acknowledges and agrees that although CSB conducts regular reconciliations of the Account against its internal records, the Client's Segregated Account Details as disclosed using the Service may be subject to such reconciliations and may therefore be subject to change. 

6.3          The Service is provided on an "as is" basis and CSB hereby expressly excludes, to the fullest extent permitted by law, all representations and warranties of any kind (expressed, implied or statutory) that are not expressly set out in these Terms of Use, including without limitation, representations or warranties as to fitness of purpose, merchantability, non-infringement of third party rights, title and freedom from a computer virus.

7              Use of Information by CSB

CSB will generally not disclose the Client's Segregated Account Details to third parties without the Client's prior permission except that nothing shall prevent or restrict CSB from disclosing customer information to: (a) its service providers, (b) its accountants and professional advisors; (c) any applicable regulatory authority having jurisdiction over it; (d) its affiliates, (e) anyone authorised by law or a court order; or (f) anyone using the Client's username and password.

8              Liability of CSB and Indemnity

8.1          To the fullest extent permitted by law, CSB shall not be liable for any damage, loss, costs or expenses whatsoever to or of the Client at any time from any cause whatsoever unless caused by CSB's own actual fraud or wilful default.  Without limitation to the foregoing, CSB shall not be liable for any direct, indirect, special, incidental or consequential damages arising in connection with the use of the Service, access to the Website, any material downloaded from the Website or any emails or attachments sent to the Client's Address, losses or expenses arising in connection with the above, or any failure of performance, error, omission, termination interruption, defect or delay in the operation or transmission or the Service or the Website.

8.2          The Client agrees to indemnify and hold harmless CSB (for itself and on trust and as agent for the benefit of the other Indemnified Persons mentioned below), its successors and assigns and their respective directors and officers and employees present and future, (collectively, the "Indemnified Persons") and each of them, as the case may be, against any liability, action, proceedings, claim, demand, costs, damages or expenses whatsoever which they or any of them may incur or be subject to in consequence of the use of the Service, access to the Website, any material downloaded from the Website or any emails or attachments sent to the Client's Address except as a result of actual fraud or wilful default of the relevant Indemnified Person and this indemnity shall expressly inure to the benefit of any such person existing or future.  References in these Terms of Use to actual fraud or wilful default mean a finding to such effect by a competent court in relation to the conduct of the relevant party.  The provisions of this clause shall continue to apply notwithstanding the termination of the Service.

9              Applicable laws

The Client must satisfy itself that the use of the Service and access to the Website complies with all applicable laws and regulations, including without limitation investment or sales restrictions and taxation laws.  CSB shall not be liable for any breach by the Client of any laws, regulations or rules that may be applicable to the Client.

10           Changes to the Terms of Use

CSB may revise, amend or supplement these Terms of Use and/or the Service at any time by notice in writing to the Client or without notice by amending or replacing the Terms of Use on the Website.  The Client shall be deemed to have agreed to such changes if the Client uses the Service following the notification of the changes by CSB or following the amendment or replacement of the Terms of Use on the Website or if the Client does not object to the changes by notice in writing to CSB within 30 days of the notification of the changes by CSB or the amendment or replacement of the Terms of Use on the Website.  The Client agrees to review the Terms of Use on the Website regularly.

11           Miscellaneous

11.1       In the event of any inconsistency between these Terms of Use on the one hand and the Client Money Account Agreement or the Administration Agreement entered into between the Client amd CSB (the "Administration Agreement") on the other, the Client Money Account Agreement or the Administration Agreement, as the case may be, shall prevail.

11.2       If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of these Terms of Use which shall remain in full force and effect.

12           Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of the Cook Islands and the parties hereby submit to the exclusive jurisdiction of the Cook Islands courts. 

 

Last Updated Nov. 16, 2009.