General Terms And Conditions (APPENDIX 1)
APPENDIX 1
General Terms and Conditions
1.1. General
1.2. These Terms and Conditions relate to the opening of a registered account for the purposes of subscription of shares in the Fund. The Fund – if applicable – the Company has appointed the Registrar as its transfer agent to maintain and keep the investors register - and the applicant(s) agree(s) to be bound by these Terms and Conditions in addition to any other official documents issued by the Fund.
1.3. The Fund, the Company, the Registrar or any other agent used by them reserves the right to 1.3.1. reject any application in whole or in part which is not complete, supported by required documentation or for any other reason at their sole discretion.
1.3.2. to request additional information and documentation, including, but not limited to, translations and certifications relating to such additional requests from the applicant(s) and existing investors in compliance with the legislation and regulations in force from time to time.
2. Prevention of Money Laundering and fight of terrorist financing 2.1. All applicants understand that due to the changing nature of laws and regulations and the possible extensions of applicable rules, the Fund, the Company, the Registrar or any other agent used by them may update and amend its procedures as might be required from time to time to comply with such amendments.
2.2. In compliance with applicable anti-money laundering laws and regulations, the Fund, the Company, the Registrar or any other agent used by them may require 2.2.1. require further information to carry out the required identification of the applicants or an existing investor before the application can be processed or the redemption proceeds paid out; and
2.2.2. the documentation to be renewed in accordance with applicable regulation and market practice.
2.3. The Fund, the Company and the Fund may agree to open accounts even if the documentation is not complete to ease the timely subscription to the Fund. In such an exceptional case 2.3.1. the registered account will be opened for subscriptions but blocked for redemptions.
2.3.2. redemption orders on blocked accounts will be executed, but the redemption proceeds will be held pending and not be paid to the Account Holder unless the documentation is complete.
2.3.3. Distribution proceeds and transfers out will be held pending unless the documentation is complete.
2.3.4. Redemption proceeds according to clause 2.3.2 will not be subject to remuneration or interest bearing.
2.4. The Fund, the Company and the Registrar reserve the right to charge in accordance with clause 6.1 an Account Holder additional fees, if the Account Holder generates additional costs through non-collaboration for the purposes of this clause.
3. Joint Applicants 3.1. If more than one person is named as "Account Holder" in a single Application and Account Opening Form, all applicants will be considered as joint applicants. As such, they authorize the Fund, the Company, the Registrar or any other agent used by them to act and rely on the signed or purportedly signed instructions of any one of the applicants without liability with respect to any transfer, payment or other act made or done or omitted to be done in accordance with such instructions.
3.2. The joint holders shall determine between them, by a separate agreement, the rights of any joint account holder on the account. The Fund, the Company, the Registrar or any other agent used by them, may at any time request each joint account holder to inform it about this determination and provide evidentiary support. Under no circumstances can the knowledge that the Fund, the Company, the Registrar or any other agent used by them has about the distribution of assets between the account holders of a joint account be used against the Fund, the Company, the Registrar or any other agent used by them.
3.3. The applicants hereby confirm that upon the death of any of the undersigned, this individual signatory power will continue to be in force. The Fund, the Company, the Registrar or any other agent used by them may rely and act without liability on any instruction including the transfer or redemption of the Shares signed by the survivor(s) unless the Fund, the Company, the Registrar or any other agent used by them has been informed in writing of the contrary.
3.4. Unless otherwise advised in writing, all notices and communications shall be addressed and all payments directed to the first applicant specified in section 1.1 of the present Application and Account Opening Form (the "First Applicant").
4. Power of Attorney 4.1. Where a Power of Attorney Form is required, a certified copy must be provided.
5. Application by a Minor 5.1. For the purposes of this Application and Account Opening Form, a minor ("Minor") is defined as every applicant under the age of 18 years old.
5.2. If the Application and Account Opening Form is submitted on behalf of, and the registered account is to be opened in the name of a Minor, the Application and Account Opening Form must be signed by the legal guardian(s) ("Legal Guardian"). Duly certified proof of legal guardianship has to be submitted in writing to the Registrar or any other agent used by them. The legal guardian(s) must provide a certified copy of a valid ID card/passport of their own and the Minor.
5.3. The Legal Guardians, where more than one legal guardian exists, may authorize, to the extent permitted by any applicable law, one or another by notice in writing to the Registrar or any other agent used by them to represent the person under 18 years old solely. Such needs to be provided to the Registrar in original duly signed by each guardian. Sole representation will become effective two business days after receipt by the Registrar of said original.
5.4. Upon reaching the age of 18 years, the (former) Minor must inform the Fund, the Company, the Registrar or any other agent used by them and submit a new Application and Account Opening Form signed by itself as the Account Holder. Until the new Application and Account Opening Form duly signed by the Account Holder has been received and accepted, the Fund, the Company, the Registrar or any other agent used by them, transactions will not be processed.
6. Indemnity 6.1. The applicant(s) will indemnify upon first demand the Fund, the Company, the Registrar or any other agent used by them against any actions, proceedings, claims, losses, damages, costs and expenses which may be brought against, suffered or incurred by them arising either directly or indirectly out of or in connection with a breach by the applicant(s) of these Terms and Conditions or out of the Fund, the Company, the Registrar or any other agent used by them relying on, accepting or failing to act on any instruction or declaration or information given by or on behalf of the applicant(s) unless due to the willful default, fraud or gross negligence of the Fund, the Company, the Registrar or any other agent used by them.
7. Confidentiality, data processing and professional secrecy 7.1. The Fund, the Company, the Registrar or any other agent used by them agree to keep all information concerning the applicant(s) confidential unless required to disclose such information to third parties by applicable Law or by formal instruction of the applicant(s).
7.2. The applicant(s) accept(s) and agree(s) that the Fund, the Company, the Registrar or any other agent used by them may be requested to disclose personal details for the processing of cash payment instructions in accordance with the mandatory obligation provided in Article 16 of the Act of November 12, 2004 (as amended) regarding the fight against money laundering and terrorism financing.
7.3. The applicant(s) declare(s) that it understands that the personal data or information given in this Application and Account Opening Form or otherwise provided to or obtained by the Fund or the Company, acting as data controller, on the application or at any other time, as well as details of any shareholding (the "Personal Data"), will be stored in digital form or otherwise and processed in accordance with the Luxembourg Law on the Data protection dated 2 August 2002 as amended (the “Data Law”). As before said, each applicant
7.3.1. understands and acknowledges that the Fund, as well as, where relevant the Company and those companies to which the Fund or the Company delegate distribution or investor servicing duties, the distributors or any other service providers such as the Registrar, representatives or third-party agents will collect, retain, maintain and disclose Personal Data in accordance with applicable laws, including potentially to their group’s worldwide offices or affiliates (the "Data Processors")
7.3.2. understands that the Personal Data supplied will enable the Fund as well as, where relevant, the Company and any of the Data Processors, to administer its account and provide appropriate services.
7.3.3. does consent to the Personal Data being used by the Fund as well as, where relevant, the Company for promoting products relating to the Fund or the Company.
7.3.4. acknowledges that the Fund, as well as, where relevant, the Data Processors may be required by applicable laws and regulations to provide the Personal Data to tax, supervisory or other authorities in various jurisdictions, in particular, those where (i) the Fund is or is seeking to be registered for a public or limited offering of its shares, (ii) investors are resident, domiciled or citizens, (iii) the Fund, as well as, where relevant the Company and those companies to which the Fund or the Company delegate distribution or investor servicing duties, the distributors or any other service providers such as the Registrar, representatives or third-party agents is or is seeking to be registered, licensed or otherwise authorised to invest.
7.3.5. acknowledges that by signing this Application and Account Opening Form, the Personal Data may be transferred to or stored in a country that does not have equivalent data protection laws to those of the European Union.
7.3.6. declares to waive in favour of the Fund, as well as, where relevant the Company and those companies to which the Fund or the Company delegate distribution or investor servicing duties, the distributors or any other service providers such as the Registrar, representatives or third-party agents the Luxembourg professional secrecy requirements relating to the financial sector.
7.4. The applicant(s) accept(s) that personal details may be disclosed by the Fund, the Company, the Registrar or any other agent used by them to external parties such as the Fund's sponsor, the Fund's Authorized Distributors or as deemed necessary by the Fund, the Company, the Registrar or any other agent used by them for the provision of enhanced shareholders' related services and that personal details (subject to the application of local laws and/or regulations) be used outside Luxembourg, and from time to time in countries which are not deemed as equivalent in terms of Data Protection Regulation, and may therefore be potentially subject to the scrutiny of regulatory and tax authorities outside Luxembourg.
7.5. The applicant(s) is/are aware that, notwithstanding the foregoing, it will be able, at any time, to (i) refuse the collecting, processing and sharing, (ii) have access, (iii) require correction or (iv) deletion of such information. As such action according to :
(i) to (iv) may affect the existence or continuation of the provision of services by the Fund, the Company, the Registrar or any other agent used by them, the applicant(s) acknowledge(s) that neither the Fund, the Company, the Registrar nor any other agent used by them will be liable for any loss or damage incurred by the applicant(s) in the context of such action according to (i) to (iv) by the Company. The Fund, the Company, the Registrar or any other agent used by them will, however, reserve the right to redeem the participation of the applicant(s) to ensure full compliance with the applicable laws and regulations and remain liable for the proper handling and fulfilment of its data protection duties.
8. Document and information retention 8.1. The applicant(s) acknowledge(s) and agree(s) that the applicant(s)' personal details will be held by the Fund, the Company, the Registrar or any other agent used by them and may be subject to data processing.
8.2. The applicant(s) will have access to his/her/their personal details and will be entitled to request relevant amendments to such details.
8.3. The Fund, the Company, the Registrar or any other agent used by them will keep the personal details for at least 10 years during the relationship and 5 years after the end of the relationship between the applicant(s) and the Fund.
9. Instructions 9.1. All notices, reports, statements, documents and communications will be sent at the risk of the applicant(s) by ordinary mail or where otherwise specified by Luxembourg legislation or the Fund's constitutional documents, by registered mail to the address of the First Applicant unless otherwise specified by the applicant(s) in writing. The applicant(s) assume(s) all risks and in particular those arising from delays in delivery including but not limited to errors in communication. The applicant(s) hold(s) harmless the Fund, the Company, the Registrar or any other agent used by them of all responsibility in this respect.
9.2. All notices, reports, statements, documents and communications sent to the address of the first applicant are deemed to have been effected to all the applicants on the date sent to the first applicant's address.
9.3. Instructions may be given by letter or facsimile and are at the risk of the applicant(s). The applicant(s) assume(s) all risks and in particular, those arising from delays in delivery, errors in communication, or comprehension, including but not limited to, errors as to the information contained in the instruction. The applicant(s) hold(s) harmless the Fund, the Company, the Registrar or any other agent used by them of all responsibility in this respect.
9.4. The applicant(s) specifically agree(s) that for instructions sent by fax he/they hold the Fund, the Company, the Registrar or any other agent used by them fully indemnified from and against all liabilities, losses, costs, actions, proceedings, claims and demands which may be incurred by or brought or made against the Fund, the Company, the Registrar or any other agent used by them arising directly or indirectly from having acted upon such instructions.
9.5. In case the application form is sent by fax, the original must also be sent to the Fund, the Company, the Registrar or any other agent used by them.
9.6. A fax authority is not sufficient for notifications of change of name, notification of death, deed of pledges and appointment of an attorney or any other notification or instruction where original documentation is required to be sent by post to the Fund, the Company, the Registrar or any other agent used by them.
9.7. The applicant(s) shall check the accuracy of the details contained in the contract notes and statements of accounts sent by the Fund, the Company, the Registrar or any other agent used by them. Failure to report any inaccuracy within 30 business days of their dispatch will result in the confirmation details being deemed accurate by the applicant(s).
10. Telephone Recording 10.1. The applicant(s) specifically accept(s) that telephone-recording procedures may be used by the Fund, the Company, the Registrar or any other agent used by them and agree(s) that these records may be used in court or any legal proceeding, with the same value as written evidence.
11. Fraudulent use of signature 11.1. Neither the Fund, the Company, the Registrar or any other agent used by them shall be liable for the fraudulent use by a third party of the applicant's signature, whether this signature is authentic or forged ("Fraudulent Instruction").
11.2. Except in the event of gross negligence on the part of the Fund, the Company, the Registrar or any other agent used by them in the verification of the signatures and signatory powers on the documentation, the Fund, the Company, the Registrar or any other agent used by them shall not be liable for any damage, loss, expense or liability of any nature which the applicant(s) may suffer due to the reliance by the Fund, the Company, the Registrar or any other agent used by them on a Fraudulent Instruction which the Fund, the Company, the Registrar or any other agent used by them believe in good faith to be genuine and to have been given or signed by the applicant(s).
12. Severance 12.1. If any provision or clause of these Terms and Conditions is or becomes void or unenforceable in whole or in part for any reason such enforceability or invalidity shall not affect the validity of the remaining terms and conditions. Terms and Conditions corresponding in sense must replace the invalid terms and conditions.
13. Applicable law 13.1. The laws of the Grand Duchy of Luxembourg shall govern the validity and construction of these Terms and Conditions and the parties agree to be bound by the exclusive jurisdiction of the courts of Luxembourg City, Grand Duchy of Luxembourg.
14. Final Provision 14.1. These Terms and Conditions form an integral part of the Application and Account Opening Form, which applicant(s) declare(s) having accepted by signing this Application and Account Opening Form.
