These Terms and Conditions set out the terms on which you may use Globacap.com and use or make any investments on the investment platform accessible on the Globacap website (collectively the “Site”) and the terms on which any services are provided by Globacap to you (“Globacap Services”) from time to time.
These Terms and Conditions are a legally binding contract (as amended, the “Agreement”) between you and Globacap Limited (“Globacap”) a company incorporated in England with company number 11046987.
References in this Agreement to “we”, “us” or “our” (or similar) is a reference to Globacap. References on our Site or in any other agreement or terms between you and Globacap to our “Terms and Conditions” (or similar) is to this Agreement.
1. Account set-up
- Registration: To use any Globacap Services, you will need to register for a Globacap account (a “Globacap Account”) by among other things providing your name, email address and a password and accepting the terms of this Agreement.
- Availability. To be eligible to use or access the Site and any Globacap Services, you must be at least eighteen (18) years of age, and be permitted to do so by the laws and regulations applicable to you in your jurisdiction, and Applicable Rules. The Site, Globacap Services, and Investments that may be available to certain registered users on the Site, may not be accessed by residents of certain jurisdictions based on applicable laws, rules and regulations and Globacap’s policies and procedures.
- Contact information. We will contact you electronically, using the Site or using the email address you have provided to us associated with your account, as updated by you from time to time (your email address). You expressly agree that (subject to Applicable Rules) all communications from us to you, on our behalf or on behalf of any Investee, will be electronic only, via the Site or your email address, and you expressly agree to receive all notices or communications from us or any Investee via the Site and/or via your email address.
- Onboarding: Before you are permitted to access or use one or more Globacap Services you will need to complete certain verification procedures, including providing us with the information we request for the purposes of identity verification, and any know-your-customer, anti-money-laundering, and other client classifications, compliance or onboarding checks. You agree to provide such information as requested, and agree that we may keep a record of such information. You represent and warrant to us on a continuing basis that all information you provide Globacap from time to time is and remains true, complete, accurate and not misleading in all respects.
- Enquiries: We may make enquiries, whether directly or through third parties or our service providers, that we consider necessary to verify your identity or comply with our onboarding or account set-up requirements, or Applicable Rules. We may take action we reasonably deem necessary based on the results of such enquiries. When we carry out these enquiries, you acknowledge and agree that information that you have provided to us, including your personal information, will be disclosed to the entities with whom we are making enquiries or the relevant third parties (or any entities or agencies with whom those third parties carry out checks or enquiries), and you permit us to keep a record of such information and the results of such enquiries.
- Information generally. You must provide us with all information and documents that we may reasonably require from time to time in connection with this Agreement and the provision of services to you. This includes anything we may require in order to comply with applicable laws, including, in particular, applicable know-your-customer or anti-money laundering regulations, or to comply with any request or requirement connected to any applicable laws or any government, authority, court or judicial process, or regulator. We may request, and you must provide to us, confirmation in writing of your compliance with this Agreement and/or reasonable evidence of such compliance from time to time.
- Client categorization. As a precondition to accessing certain Globacap Services you will be required to complete questionnaires or provide confirmations to Globacap with respect to your client categorization for the purposes of one or more applicable laws, rules or regulations. This may include requirements in respect of net worth, annual income, knowledge and experience, prior investments, and so forth, and may include certifications as to investor type. You acknowledge that Globacap will rely on any information provided by you and client classifications done by you, and you represent and warrant to Globacap on a continuing basis that you meet and continue to fall within the client classification(s) that you have confirmed to us, and where any conditions are applicable to that client classification(s) that you continue to meet those conditions.
- Discretion. We may, in our sole discretion, refuse to open a Globacap Account for you, or suspend or terminate any Globacap Account or any specific activity relating to any Globacap Account, or restrict your access to one or more Globacap Services at any time.
- Except as otherwise provided herein, or required pursuant to applicable laws, Globacap will only act upon your instructions in respect of your Globacap Account or any of your assets or orders. References herein to an “instruction” is to an instruction or authorisation or order (including standing instructions, authorisations or orders) given by you to us in any manner that we may accept from time to time; “instruct” and “instructed” will be construed accordingly.
- Giving of Instructions. Instructions may be given (and, where needed, signed and/or authenticated) electronically via the Globacap platform, or by any other method agreed by Globacap. You expressly agree and instruct us to assume that any instruction from your Globacap Account is from you and is duly authorised.
- Investments. The Site may contain one or more potential investments, capital raisings, or other offerings of securities, assets or investments (each a “Fundraising” and potential investment, shares, bonds, contractual rights, or other assets offered or referenced in respect of that Fundraising, “Investment Assets”) issued by one or more issuers or obligors raising funds through the Globacap Platform (each an “Investee” of the relevant Fundraising).
- Deal Page / Offering Materials. Each Fundraising will have its own section or pages of the Site relating to it (the “Deal Page”). Certain Fundraisings may, in addition, be subject to a prospectus or offering materials or similar documents or materials (collectively “Offering Materials”). In such circumstances the Deal Page will contain such Offering Materials or a link to such Offering Materials, or a link to the site where such Offering Materials may be obtained. You must review such Offering Materials, together with all Risk Disclosures, in full. Where Offering Materials contain restrictions, for example restrictions on who may invest or hold the relevant Investment Assets, you must ensure that you comply in full with any such restrictions at all times.
- Eligible Persons. Fundraisings, and investment into Fundraisings, are only available to Eligible Persons. If you are not an Eligible Person, or are not an Eligible Person for one or more specific Fundraisings, you must not access that Fundraising or any Deal Page relating to any (or the specific) Fundraising, or any information relating thereto. Whenever you register for, request access to, view, or place an order for, any particular Fundraising, you are deemed to represent and warrant to Globacap that you are an Eligible Person generally and in respect of that specific Fundraising. For these purposes “Eligible Persons” are those persons or entities who (i) eligible to participate in the relevant investment based on the applicable laws, rules, regulations and restrictions in their jurisdiction or to which they or their activities are subject, or applying to the relevant Investment, or applicable under Applicable Rules, (ii) have such knowledge, experience and sophistication in financial, investment, tax, business and technology matters so as to be able to evaluate the legal, economic and other merits and risks associated with the relevant Investment and to make an informed decision with respect thereto.
- Where you decide to apply to invest in or subscribe for Investment Assets on and subject to this Agreement and the relevant Investment Terms, you may do this by submitting a request (an “Order”) through the section of the Deal Pages relating to Orders to invest a specific amount (the “Investment Amount”) for a certain number of Investment Assets, on and subject to the Investment Terms and any other terms indicated on the relevant Deal Page.
- Investment Terms. Any Order and any investment in any Fundraising and any purchase of or subscription or application for any Investment Assets will be subject to certain ‘Investment Terms’ and other terms and conditions referenced on the Deal Pages (“Investment Terms”). You will be deemed to represent, warrant and confirm to Globacap and the Investee that you have read and understood in full such Investment Terms.
- Order commitment. When you make and pay for an investment through the Platform, the amount of money you have invested or subject to the Order will be deducted from your “available” balance shown on your Globacap Account in the relevant currency, and will be shown as “allocated”. For the period between when you make the investment by giving your Order and when the Fundraising completes, the money will continue to be held in a client money account, but it will not appear as part of the “available” balance shown in your Globacap Account, and it will not be available for you to withdraw. Once the investment is completed, the money will be transferred to the Investee as payment for your investment in the relevant Investment Asset(s) and will cease to be held for you as client money. If the relevant Fundraising does not complete or is cancelled, for any reason, the money will remain in the client money account and will be credited back to the “available” balance of your Globacap Account of the relevant currency, as set out in the Investment Terms.
- Any Fundraising is an offer by the Investee, and not an offer by Globacap, and the agreement to issue the Investment Assets to a potential investor is an agreement between the Investee and you as the potential investor. Globacap’s services in respect of any Fundraising vis-à-vis any investor is limited to arranging the investment in the relevant Investment Assets and (if applicable) providing any related client money or client asset services where agreed separately.
- You must ensure and are deemed to represent and warrant to Globacap that you are legally permitted to access and use the Site and Globacap Services in your jurisdiction, and to receive any financial promotions or other information in respect of one or more Investments or assets that may be available from time to time on the Site, and that you comply with all applicable laws in your jurisdiction.
- Independent Advice. You should seek your own independent financial and legal counsel prior to making any decision to participate in a Fundraising. In no circumstances will Globacap be responsible for any Liabilities incurred by you or any other person in connection with its investigation of any investee company or otherwise incurred in connection with a Fundraising.
4. Holding of assets
- Client Money. Any cash received and accepted by us under the terms of this Agreement and held for you will be held as client money under and for the purposes of the FCA Rules, and credited to the balance of your Globacap Account. In any other circumstances where we are required to hold money as client money, we will hold such money as client money under and for the purposes of the FCA Rules.
- You may request a withdrawal of an amount up to the total balance of the cash credited to your Globacap Account (excluding any amounts subject to an outstanding Order as set out in clause 3). The process for any withdrawals will be set out on the Platform or provided on request, and may be subject to fees.
- No interest. No interest will accrue or be paid to you on any credit balances held in your Globacap Account.
- Separate Custody Agreement. We may from time to time enter into separate custody service agreements or custody terms with you (a “Custody Agreement”) under which we may hold securities, cash, securities or other assets for you. Any assets held under a Custody Agreement will be held under the terms of that Custody Agreement.
- Information relating to holding of assets. Additional information relating to the holding of assets that we may hold for you from time to time is set out at Annex 1 to this Agreement.
5. Set-off and deduction
- Set-off. You agree that we may retain or make deductions (by way of set-off or otherwise) from any amounts which we or any of our affiliates owe to you in respect of any liability you or any of your affiliates have or may have to us, regardless of the currency or place of payment of the obligation. For the purpose of cross-currency set-off, we may convert any obligation at a prevailing market rate of exchange available to us in our reasonable discretion. If an obligation is unascertained we may in good faith estimate that obligation and set off in respect of the estimate, subject to the relevant party accounting to the other when the obligation is ascertained.
- We may deduct or withhold all forms of tax (wherever or whenever imposed) or any other amounts required by law or any court or legal process from any payment or delivery or amounts held for you if obliged to do so under applicable laws. In accounting for tax or making deductions or withholdings of tax, we may estimate the amounts concerned. We will credit or send to you any excess of such estimated amount over the final confirmed liability as quickly as practicable.
6. Risks; Independent Advice
- Own risk. You acknowledge and agree that any Investment or your use of any Globacap Services is at your own risk. You should conduct your own research and investigations and obtain your own independent advice as needed for a detailed analysis and understanding of the risks of investing in any Investment.
- Risks. Your capital is at risk in respect of any Investment. Investing, particularly in early stage and other growth-focused businesses, carries risks, including loss of capital and illiquidity. The value of an investment and the income from it can fluctuate, it may be affected by exchange rate variations and you may not get back any amount invested. Past performance is not necessarily a guide to future performance. Please see the Risk Warnings available on our Site. Additional specific risks may be applicable to a particular Investment Asset or Fundraising, which will be set out or referenced on the relevant Deal Page (“Deal Risks”).
- No advice. Globacap does not provide investment advice and will never act as your adviser or in any advisory capacity. If you do require investment advice or any other professional advice, or are in any doubt about this Agreement or any other terms or information on the Site or applicable to any Globacap Services or any Investment, please contact your appropriate independent professional adviser.
- Independent advice. It is your responsibility to obtain such advice, including legal, tax, accounting, regulatory, investment, financial and other professional advice, as you deem appropriate based on your particular circumstances, knowledge and experience, and you represent and warrant to us on a continuing basis that you have done so.
- By making any Investment, you acknowledge the terms of, and represent and warrant to Globacap that you have read and understood, the Risk Warnings and any Deal Risks, and that you have obtained such independent professional advice as you consider appropriate.
- LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT GLOBACAP IS NOT LIABLE TO YOU FOR ANY LIABILITY SUFFERED BY YOU OR ANY PERSONS FOR WHOM YOU ACT FROM TIME TO TIME ARISING FROM OR IN CONNECTION WITH THE SITE, ANY INVESTMENT, YOUR GLOBACAP ACCOUNT, OR ANY GLOBACAP SERVICES, UNLESS CAUSED BY OUR WILFUL MISCONDUCT OR FRAUD. WE WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL LOSS, HOWSOEVER ARISING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF GLOBACAP IN CONNECTION WITH THIS AGREEMENT OR ANY GLOBACAP SERVICES, WHETHER IN CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR ANY OTHER THEORY, EXCEED IN AGGREGATE THE FEES PAID BY YOU TO GLOBACAP DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF ANY CLAIM GIVING RISE TO SUCH LIABILITY OR, IF YOU HAVE NOT PAID ANY FEES TO GLOBACAP IN THE LAST 12 MONTHS, THEN TO A MAXIMUM AGGREGATE AMOUNT OF TEN POUNDS STERLING.
- “AS-IS” AND “AS AVAILABLE” BASIS. THE SITE AND ANY GLOBACAP SERVICES (IF ANY) ARE OFFERED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, GLOBACAP MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS AND WARRANTIES OF COMPLETENESS, MERCHANTABILITY, TIMELINESS, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM ANY COMPUTER VIRUS / HARMFUL COMPONENT OR NON-INFRINGEMENT, WITH RESPECT TO THE USE OF THE SITE OR ANY INFORMATION POSTED ON OR SERVICES AVAILED THROUGH THE SITE. IN NO EVENT WILL GLOBACAP OR ITS REPRESENTATIVES BE LIABLE FOR ANY LIABILTIES OF ANY KIND WHATSOEVER RESULTING TO YOU OR TO ANY THIRD PARTY DIRECTLY OR INDIRECTLY FROM ANY USE OF OR DEFECT IN THE SITE OR ANY INFORMATION CONTAINED ON THIS SITE OR ANY UNAVAILABILITY OR MALFUNCTION OF THE SITE.
- Indemnification. You hereby agree to indemnify, hold harmless and, at the request of Globacap, defend Globacap and any investee or nominee companies and their respective representatives against all Liabilities arising from or relating to or in connection with activities, services or actions that occur under or in connection with this Agreement, any Globacap Services, your Globacap Account, any Investments, and/or your use of the Site or any services or activities thereon.
- Release of Globacap. If you have a dispute with any other user of the Site or Globacap Services, including any Investee or persons associated with them, you agree that neither we nor our representatives will be liable for any Liabilities arising out of or connected with such disputes.
- Force Majeure. We and any of our representatives are not liable to you for any Liabilities, costs or expenses incurred by you as a result of any failure, interruption or delay in performance of any of our obligations resulting from acts, events or circumstances not reasonably in our control, including but not limited to acts of war or terrorism, acts of God, industrial disputes, acts or regulations of any governmental or supranational bodies or authorities, breakdown, failure or malfunction of any telecommunications, electronic or computer services, networks, computer network, infrastructure, services provider, blockchain system, platforms and systems, or the failure by any relevant intermediate broker or agent, any blockchain system, agent or principal of ourselves, custodian, sub-custodian, dealer, exchange, clearing house or regulatory or self-regulatory organisation, for any reason, to perform its obligations.
- Disclaimer. No representation or warranty is given, and no responsibility or liability is or will be accepted, by Globacap as to the performance of any Investment, risks associated with any Investment, or whether a particular Investment is suitable for, or may benefit, any particular investor, or the achievement or reasonableness of any projections, estimates, prospects or returns contained or referred on an Deal Page or in respect of a particular Investment, or any forward-looking or aspirational statements.
- Applicable Law. This section is without prejudice to our obligations under Applicable Rules. Nothing in this Agreement reduces, limits or excludes any liability for fraud or any other liability which cannot be reduced, excluded or limited under Applicable Rules.
- Not exclusive. These limitations of liability and indemnities are in addition to any other limitations, rights, remedies, recourse, security or other rights that Globacap may have from time to time under applicable law or under any contracts or terms in place with you.
8. Fees, and Payments
- The fees associated with Globacap Services will be set out on the Site or communicated to you from time to time. We reserve the right to adjust any fees at any time by not less than 30 days prior written notice to you.
- You are responsible for payment of our fees and other charges, when due, as notified to you (including notification via the Site or other messaging system in a manner approved in advance by us and notified to you from time to time) or agreed with you from time to time. These amounts must be paid to us free and clear of any set-off or counterclaim, and without withholding or deduction.
- You authorise us to debit any of your Globacap Accounts to pay any amounts due to us or otherwise in connection with your instructions, this Agreement, or our services.
- If you fail to pay any amount when due and payable to us, we reserve the right to charge you interest on such amount until the date that payment is received by us, at a rate equal to the Bank of England Base Rate prevailing at the current time plus four per cent. per annum (4% p.a.) as determined in our absolute discretion. Interest will accrue on a daily basis and will be due and payable as a separate debt.
9. Data Protection
- Accordingly, you represent and warrant that:
- your disclosure to us of any personal data relating to individuals other than yourself was or will be made in accordance with all applicable data protection and data privacy laws, and those data are accurate, up to date and relevant when disclosed;
- References herein to “data privacy laws” includes (i) all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation (EU 2016/679), the Data Protection Act 2018, the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended, and (ii) any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
10. Security and access
- Access security. You are responsible for keeping the electronic device through which you access your Globacap Account and any Globacap Services safe and maintaining adequate security and control of any and all security or login details (including any two factor authentication methods) that you use to access your Globacap Account and any Globacap Services. This includes taking all reasonable steps to avoid the loss, theft or misuse of such electronic device and ensuring that such electronic device is both encrypted and password protected.
- Responsibility. You are fully responsible for all activity that occurs under your Globacap Account. Any loss or compromise of your electronic device or your security details may result in unauthorised access to your Globacap Account by third-parties, and may result in losses including the loss of assets, monies, information or rights .You must keep your security details safe at all times. For example, you should not write them down or otherwise make them visible to others, and you should not disclose your password or login-details to any third party or permit any third party to have access to your account. We assume no responsibility for any loss that you may sustain due to compromise of account login credentials or failure to follow the provisions of this section, or follow or act on any notices or alerts that we may send to you.
- Security Incident. If you suspect that your Globacap Account or any of your security details have been compromised or if you become aware of any fraud or attempted fraud or any other security incident (including a cyber-security attack) affecting you or Globacap (together a “Security Incident”), you must promptly notify Globacap, provide us with accurate and timely information that we request relating to that Security Incident, and take any steps that we request or require relating to that Security Incident.
- Use of the Site. You undertake, represent and warrant to us that you will only use the Site in accordance with this Agreement, and any other applicable laws, including Applicable Rules, to which you and/or Globacap are subject.
- Compliance. You must comply with all applicable laws, regulations, licensing requirements and third party rights (including, without limitation, data privacy laws) in your use of your Globacap Account, the Globacap Services, the Site, or any Investments.
- Compliance checks. Prior to paying you any cash or assets from your Globacap Account, including following any withdrawal or transfer request, we may conduct checks for the purposes of preventing fraud, money laundering, terrorist financing and other financial crimes, or as otherwise required by Applicable Rules. This may mean you are prevented or delayed from withdrawing any cash or assets until those checks are completed to our reasonable satisfaction in order to comply with our regulatory requirements.
- The Site may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. In an effort to continue to provide you with as complete and accurate information as possible, information may, to the extent permitted by applicable law, be changed or updated from time to time without notice, including without limitation information regarding our policies, products and services, including any terms and conditions or this Agreement. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the Site are your sole responsibility and we shall have no liability for such decisions.
- The Site includes content and information provided by third parties, including information with respect to the business and/or financials and/or activities of such third parties which such third parties may deem as ‘confidential’ as well as information provided by and considered ‘confidential’ by Globacap (collectively Confidential Information). You shall not, without the prior written approval of Globacap and/or such third parties as applicable, publish or otherwise disclose to others, or use such Confidential Information for any purpose other than your personal consumption as part of your initial basic research about an investee company.
- You are solely responsible for determining, reporting and paying all the applicable taxes in relation to your participation in the Investments. You undertake to Globacap that you will determine, report, and pay all applicable taxes that you may be subject to from time to time. Globacap is not responsible for withholding, collecting, reporting, or remitting any applicable tax arising from an Investment or any distributions associated with any assets, securities or other investments.
- Limited license. Subject to the eligibility, registration and verification requirements set out herein, we grant you a limited, non-exclusive, non-transferable, terminable, license, subject to this Agreement, to access and use the Site, and related content, materials, and/or information solely for approved purposes as set out herein and permitted by us from time to time. We may terminate such license at any time and without notice. Any other use of the Site or any related content, materials, and/or information is expressly prohibited and all other right, title, and interest in the Site or any related content, materials, and/or information is exclusively the property of Globacap, and you agree not to copy, transmit, distribute, sell, license, reverse engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any of the content on the Site, in whole or in part.
- Prohibited Activities. Without limitation, you agree that you will not and that you will procure that each of you representatives or associated persons will not: (i) provide false, inaccurate, or misleading information to Globacap or its representatives for any purposes, (ii) misuse the Site by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful (together viruses), (iii) take any action that interferes with, intercepts, or expropriates any system, data, or information, transmit any virus, work or other malicious software or program, (iv) attempt to ‘hack’ or gain un-authorised access to our site, the server on which our site is stored or any server, computer or database connected to the Site (or in each case any accounts of other clients, or areas of the Site, to which you have not been granted access), or attack the Site via a denial-of-service attack, (v) partake in any transaction or activity involving the proceeds of illegal activity or which involves any person or entity subject to any sanctions or located in any jurisdiction subject to any sanctions; (vi) defame, harass, or violate the privacy, personal data, or intellectual property rights of Globacap or any of its customers, (vii) scrape content from this site and repost such content, either manually or automatically, without our prior written consent (such activities, Prohibited Activities).
- Publications and Media. From time to time Globacap and/or its representatives and/or any Investee or persons associated with them, and/or other persons, may make one or more publications which may relate to one or more markets, events, systems, investments, Investments, assets or otherwise and which may be or may include advertising, commentary, or opinion. Publications or statements by any person, whether or not a representative, are not the views of Globacap unless we expressly say that they are, and we disclaim any liability for any and all forms of loss or liability arising out of or in connection with them or any use of them. No publication is intended or may be relied upon as any form of advice or recommendation and does not form the basis of any Service. You must not rely on any publication, or any statements or information therein, as the basis for any investment decision. For these purposes “publications” includes any method of disseminating information orally or in writing or electronically, including without limitation talks, media appearances, lectures, panels, interviews, podcasts, books, articles, blogs, comments or other interactions (including ‘likes’, ‘tweets’, ‘shares’ and similar) on social media or other third party platforms, including any website or publication.
- Relationship between us. Nothing in this Agreement shall be deemed or is intended to be deemed, nor shall it cause, either you or Globacap to be treated as partners or joint ventures, or either you or Globacap to be treated as the agent of the other.
- No Waiver. Failure by Globacap to exercise or enforce any right conferred by this Agreement or otherwise shall not be deemed to be a waiver of any such right nor operate so as to bar that exercise or enforcement thereof or of any other right on any later occasion.
- If any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or part for any reason, such provision (or part thereof, as the case may be) shall be deemed modified so that it is an enforceable provision that most closely reflects the parties’ intent.
12. Suspension, Termination and Cancellation.
We may: (i) refuse to complete, or block, cancel or reverse a transaction you have authorised (even after funds have been debited from your account), (ii) suspend, restrict, or terminate your access to any or all of the Site or any of Globacap’s services, and/or (iii) deactivate or cancel any accounts you have with Globacap, with immediate effect for any reason, including but not limited to where:
(a) we are, in our reasonable opinion, required to do so by applicable law, regulation or any court or other authority to which we are subject in any jurisdiction;
(b) we reasonably believe that we need to do so in order to protect our reputation;
(c) we reasonably suspect you of acting in breach of this Agreement;
(d) we reasonably suspect a Security Incident or have concerns that a transaction is erroneous or about the security of your account or we suspect the account or our services are being used in a fraudulent or unauthorised manner or in any matter contrary to this Agreement or applicable laws;
(e) we suspect money laundering, terrorist financing, fraud, breach of sanctions, or any other financial crime, or any other action that may be contrary to any applicable laws;
(f) we suspect that any information that you have provided to us, including without limitation information relating to any KYC, AML or other compliance processes, is not true, complete and accurate, or is fraudulent, or is misleading; and/or
(g) use of your account is subject to any pending litigation, investigation, or government proceeding and/or we perceive a heightened risk of legal or regulatory non-compliance associated with your account activity.
13. Intellectual Property Rights
- Copyright, trademark and other forms of proprietary rights protect the contents of the Site, including its overall appearance, graphics design and underlying source files. All such contents are owned or controlled by Globacap or the party credited as the provider of the contents. Except as expressly provided herein, nothing in the Site should be considered as granting any license or right to any copyright, patent or trademark or other intellectual property rights of Globacap or any third party. You shall not sell, copy, publish, transfer or modify the information or software on the Site without prior written approval from Globacap or the relevant third party.
- Globacap’s name, logos and other Globacap intellectual property are owned by Globacap. Rights in other marks and logos which appear on the Site are reserved to the owners thereof, and Globacap is not affiliated with and does not endorse such entities. Nothing contained in the Site should be construed as granting any ownership, license or right to use any of these trademarks or logos.
- All information, including logos, trademarks, graphics as well as text provided on the Site shall not be copied, reproduced or distributed without the prior express written permission of Globacap.
- You may not link to, scrape or frame the Site or any portion hereof without our prior written consent. We reserve the right to withdraw linking, scraping and framing permission without notice.
- If you wish to make a complaint about Globacap, the process and contact details for doing so is set out in Globacap’s complaints procedure at Annex 2 of this Agreement.
15. Notices and communications
- Notices will be sent or transmitted to you in accordance with the communication details provided to us by you via the Site.
- Notices to you may be validly given if delivered via the Site or to any email address you have registered on the Site, and you consent to receiving all notices via the Site or other electronic means.
- Notices delivered via the Site or via other electronic means or messaging systems, will be effective when delivered or transmitted.
- You confirm that you have regular access to the internet and consent to us providing you with information through the Site to the extent permitted by laws, rules and regulations applicable to Globacap, and to notices exclusively through the Site and/or by your email address.
- You are responsible for keeping your email address and other contact information up to date in your Globacap Account in order to receive any notices or alerts that we may send you.
- Globacap reserves the right to vary, in its sole discretion, the terms of this Agreement from time to time. You can access the latest version of this Agreement on the Site, and notice of any amendment or variance of the terms of this Agreement may be given by the Site. Prior versions of this Agreement are available on request.
- Your continued use of the Site means that you agree to be legally bound by the terms of this Agreement, as amended or updated from time to time, and any “log-in” to the Site at any time will be deemed to constitute your acceptance of the latest version of this Agreement.
- A communication from you that purports to amend, supplement or reject this Agreement will only take effect with our written agreement. If you do not agree with the terms of this Agreement, you must not use or log-in to the Site or any Globacap Services.
17. Definitions and Interpretation
In this Agreement, in addition to other terms defined herein:
“applicable laws” means applicable laws, rules or regulations; and a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation, in each case as amended or supplemented;
“Applicable Rules” means all laws, rules and regulations howsoever applying to Globacap in relation to our provision of any services to you or otherwise in connection with these Terms and Conditions or our activities and, where relevant, the market practice of any exchange, market, trading venue or any clearing house and including the FCA Rules;
“investment” includes any investment, purchase, allotment, allocation, purchase or request;
“your jurisdiction” means your jurisdiction of residence, domicile and/or incorporation (as applicable) as determined by any applicable laws to which you are subject;
“FCA Rules” means the rules and guidance in the FCA Handbook (as amended from time to time), including directly applicable provisions derived from European law prior to the UK’s withdrawal from the European Union;
“FCA” means the United Kingdom Financial Conduct Authority, or its successors.
“Liability” means any and all liabilities, losses, damages, penalties, fees (including any Transfer Fees), costs, interest, fines, expenses and disbursements of any kind or nature whatsoever (including, without limitation, legal and other professional fees).
“representatives” includes representatives, agents, employees, advisers, directors or officers.
“security” means a “security” as defined in The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (as amended), and “securities” will be interpreted accordingly;
“person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);
18. Governing Law and Jurisdiction
- This Agreement and any non-contractual obligations arising out of or in connection with it, including any claims that you may have against Globacap for any reason connected with this Agreement or any Globacap Services or the Site, shall be governed by and construed in accordance with English law.
- Any disputes arising in connection with this Agreement or a visit to the Site shall be subject to the exclusive jurisdiction of the English courts.
INFORMATION RELATING TO THE HOLDING OF ASSETS AND CLIENT MONEY
Any cash received and accepted by us for a client will be held as client money under and for the purposes of the FCA Rules. Where Globacap holds any client money for you, we may hold client money in any manner permitted by the FCA Rules or other applicable laws.
Where Globacap places cash it holds for the client as client money with a third party, that cash will be held by the third party in an omnibus bank account for the client as well as Globacap’s other clients whose cash forms part of that pool.
Unless otherwise provided for in separate documentation, we will not pay interest to you on any client money held by us on your behalf and any interest earned on client money held by us on your behalf will be retained by us.
Any shares, bonds, securities or other assets which received and accepted by us from you for custody would constitute a “security” as defined in the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, as amended, received and accepted by us from you for custody (a “security”) held by Globacap as custodian will be held by Globacap as safe custody assets for the purposes of the FCA Rules, and may be held in any manner in which safe custody assets are permitted to be held under the FCA Rules.
We may from time to time hold assets for you that are not (or which are not at the time) regulated in the UK or by the FCA or subject to the CASS Rules and which do not constitute “securities” or “cash” (“Unregulated Assets”).
Unregulated Assets will not be or held as ‘safe custody assets’ or ‘client money’ under and for the purposes of the FCA Rules. Any Unregulated Assets held by Globacap for you, and/or any services provided by Globacap relating to Unregulated Assets, will not be held by or carried out by Globacap for you as part of any regulated services or activities carried out or provided by Globacap.
Unregulated Assets and any other unregulated assets held for you under this Agreement will be held solely on the basis of the contractual terms agreed with you under the relevant contract in place between you and Globacap relating thereto. Unregulated Assets or unregulated assets that may be held by Globacap for you from time to time will therefore not have the protections set out in the FCA Rules or CASS Rules for client money or client assets.
The laws and/or any customs, governing principals, norms or conventions that may be applicable to Unregulated Assets may be different to regulated assets such as securities or cash, and may be different to English law, the laws of your jurisdiction. Accordingly any rights you may have as a holder of the relevant Unregulated Assets may vary and be different to rights that you or such a holder of other types of asset or regulated financial asset. The legal and regulatory treatment of Unregulated Assets, and the laws, rules and regulations that apply to Unregulated Assets or its holding, may evolve over time. In the event of any default of Globacap or a third party Unregulated Assets may not be as well protected from claims made on behalf of creditors of Globacap or such third party. Globacap accepts no responsibility or liability for any liabilities associated with or otherwise connected with Unregulated Assets.
Third parties and sub-custodians
To the extent Globacap holds securities in custody for the client or holds the client’s cash as client money in accordance with the FCA Rules, such securities or client money may be held by a third party appointed by Globacap, for instance a sub-custodian or one or more eligible banks.
The FCA Rules require Globacap to exercise due skill, care and diligence in the selection, appointment and periodic review of such third parties and of the arrangements for the holding and safekeeping of the securities or client money (as applicable). When appointing a third party, Globacap is required to take into account the expertise and market reputation of the third party and any legal requirements or market practices relating to the holding of the securities or client money (as applicable) that could adversely affect the client’s rights, but we will not be responsible for any acts or omissions or the insolvency of any such third parties.
The acts, omissions, default or insolvency of a sub-custodian may result in the loss of your financial instruments and other losses. We will not be liable for any losses relating to any third parties or sub-custodians, other than in the case of our own fraud. Where securities are held by a nominee that is controlled by Globacap Limited, we will remain responsible for the acts or omissions of such nominee company to the same extent as we would be liable for our own acts.
Legal title to securities held as safe custody assets for you may be registered or recorded in the name of a nominee. The nominee may be a wholly owned subsidiary of Globacap, or controlled by Globacap, its affiliates, a recognized investment exchange, or a third party with whom Globacap has deposited securities in accordance with this Agreement and applicable laws.
Where securities are subject to the law or market practice of a jurisdiction outside the UK, if Globacap believes it is in the client’s best interests to do so, and it is not possible to register or record such securities in the name of the client or a nominee, it will register or record such securities in the name of a third party and, if this is not possible, in Globacap’s name. As a consequence these securities may not be segregated from Globacap’s own assets and in the event of Globacap’s default these securities may not be as well protected from claims made on behalf of the general creditors of Globacap.
Where securities or client money are held overseas they may be subject to the law of a jurisdiction other than that of the UK or an EEA state and the client’s rights relating to such securities or client money may differ accordingly. Settlement, legal and regulatory requirements and practices for the separate identification of money, securities or assets may differ from those applying in the UK. Where securities are subject to the law or market practice of a jurisdiction outside the UK, if Globacap believes it is in the client’s best interest to do so, and it is not possible to register or record such securities in the name of the client or a nominee, it will register or record such securities in the name of a third party or if this is not possible then in the name of Globacap. As a consequence these securities may not be segregated from Globacap’s or the third party’s own securities and in the event of any default of Globacap or such third party those securities may not be as well protected from claims made on behalf of creditors of Globacap or such third party.
Where Globacap identifies (whether as a result of a reconciliation process or otherwise) that there is a discrepancy between (i) Globacap’s records and accounts of cash or securities held for the client, and (ii) the number or amount of cash or securities (as applicable) actually held for the client (whether by Globacap or by a third party), and such discrepancy results in a shortfall, then Globacap will as soon as reasonably practicable (unless Globacap has determined that the shortfall was caused by a third party): (a) calculate the value of the shortfall in GBP using (where relevant) the exchange rate and/or valuation methodologies selected by it in good faith, (b) based on such valuation, appropriate an amount of its own cash or securities or a combination thereof to cover the value of the shortfall, and (c) hold such appropriated cash or securities (as the case may be) for the benefit of the client or in custody for the benefit of the client, in each case in accordance with the FCA Rules. The process in (a)-(c) in the preceding sentence will be repeated on a daily basis and segregation of client money or securities (as the case may be) will be reflected by Globacap in any statements that may be provided to the client. Once the shortfall has been eliminated or reduced, the amount of cash or securities held by Globacap as set out in this clause will be reduced accordingly.
We may, and you authorise us to, treat cash or securities or Unregulated Assets held for you from time to time of the same type, class and denomination as fungible, and you acknowledge that you will not have any rights to any specific assets but shall instead be entitled, subject to applicable laws and to this Agreement, to the relevant amount of equivalent assets, and Globacap’s account maintained for you will record the amount of the relevant equivalent assets to which you are entitled; for these purposes “equivalent” or “equivalent to” in relation to any asset means assets or property of an identical type, class, nominal value, description and amount.
We, or any relevant third party, may hold your securities or other assets on a pooled basis in a general omnibus account. Where securities or other assets are held in an omnibus account with a third party, in the event that the third party becomes insolvent and/or there are insufficient assets in that account or a shortfall that cannot be reconciled, the client may not recover some or all of its assets. The manner in which a shortfall will be dealt with may vary in accordance with applicable laws, rules and regulations.
As a result of other clients, or a sub-custodian’s clients, owning a particular asset held in an omnibus account, you may be exposed to settlement risks arising from the transactions of such other clients. Certain factors (including settlement cycles, settlement failures and the operation of third party systems) may from time to time result in us or a sub-custodian using your assets for the purposes of settling a transaction of another customer and you hereby consents to such use.
Where a third party bank, sub-custodian, depository or other entity appointed by Globacap to hold client money, securities or other assets becomes insolvent, we may only have an unsecured claim against the third party on your behalf and you will be exposed to the risk that the securities, cash or any other property received by us from the third party are insufficient to satisfy your claim and the claims of all other relevant clients. We will not be responsible for any shortfall in respect of any insolvency of a third party.
With respect to client money specifically, where a third party bank appointed by Globacap to hold client money fails or becomes insolvent, the amount of money in the relevant client bank accounts at the third party may be insufficient to satisfy the claims of all clients in respect of those accounts. This means that in the event of our failure, any shortfall in client money in such omnibus accounts would be borne by all clients rateably in accordance with their entitlements in respect of the client money held for clients on this basis. In such circumstances, you may not receive an amount equal to the individual sum owing to you.
Globacap may have a security interest, lien or right of set off in respect of securities or client money held by Globacap for the client. The terms governing such security interest, lien or right of set-off will be contained in the Customer’s contracts with Globacap.
A third party such as a sub-custodian or depository with which Globacap holds securities or client money may also have a limited security interest or lien over such securities or client money, to the extent permitted by applicable laws, which may permit that sub-custodian or depository to dispose of your assets in order to recover debts that relate to our clients or the provision of services by us to our clients, or otherwise where this is required by applicable law. In addition a depository may have a security interest or lien or right of set-off in respect of monies or financial instruments held with it. There is therefore a risk that, if we or a sub-custodian fail or are unable to make any payment due to a central securities depository, your assets could be applied to discharge our or the sub-custodian’s liability to the extent required by the relevant law.
This annex and the terms, information and disclosures contained in it may be unilaterally updated, supplemented and/or amended by Globacap at any time by notice to you. Notice of any changes may be given by means of uploading the revised version to our website, or by any electronic communications methodology, and will take effect 14 days after notice or uploading of the revised version (or, where a shorter period is required by law, immediately).
GLOBACAP COMPLAINTS PROCEDURE
Globacap is committed to providing a high level of service to its clients. However, there may be occasions where clients feel that they have an issue that they would like to be addressed in relation to our services. Globacap takes such concerns seriously and endeavours to promptly respond to and resolve complaints.
Globacap has implemented and maintains complaints management procedures aimed to facilitate the resolution of disputes quickly and fairly and to fulfil Globacap’s obligations as set by Globacap’s regulator, the Financial Conduct Authority. Please see below for Globacap’s Complaints Procedure.
For the purposes of our complaints procedure, a “complaint” is defined as any oral or written expression of dissatisfaction, whether justified or not, from or on behalf of an eligible complainant about the firm’s provision of, or failure to provide, a financial service which alleges that the complainant has suffered (or may suffer) financial loss, material distress or material inconvenience.
To register a complaint
If you have a complaint, you may make a notification to Globacap either in writing or verbally. The contact details are below:
London EC2V 6LP
Telephone: +44 203 488 0401
Email: supp[email protected]
The complaint will be dealt with by Globacap’s complaints function in a prompt and fair manner.
Resolution less than three working days: Globacap will promptly provide a written response stating the resolution to your complaint and such response will include information on your rights.
Resolution more than three working days: Globacap will promptly issue to you an initial written acknowledgement stating receipt of the complaint. Within eight weeks of receiving your complaint, Globacap will endeavour to provide a full and final response.
Complex complaints: Globacap may not be able to provide a final response to certain complex complaints within the eight-week period following receipt of the relevant complaint. Globacap will provide a holding response within this eight-week period explaining why Globacap is unable to resolve your complaint at this time and specifying the time-frame for the next point of contact.
What if I feel that my complaint has not been resolved satisfactorily?
If you are of the view that your complaint has not been resolved to your satisfaction, you may ask Globacap to reconsider their response. Please note that you may have the right to refer your complaint to the Financial Ombudsman Service (FOS) and such referral must occur within six months of the date of Globacap’s written confirmation.
Financial Ombudsman Service (FOS)
The FOS a free and independent service set up by the UK Parliament to resolve individual complaints between financial businesses and their customers when it is not possible to come to a mutual agreement. Only eligible complainants can have their complaints considered by the FOS. Globacap will inform you of your rights in the written response that Globacap sends to you.
The FOS website can be found at: https://www.financial-ombudsman.org.uk/
If you have any questions regarding our complaints procedure, please contact us using the following details: [email protected]