I. INTRODUCTION
A. General provisions
1. Any terms defined in these General Terms and Conditions shall have the same meaning in any other document governing the relationship between Pilatus Bank plc. and the Client, unless defined otherwise in such other document.
2. Unless otherwise stated, capitalized terms used herein shall bear the meaning assigned to them in these General Terms and Conditions. The Bank may change or amend the terms of these General Terms and Conditions at any time. Any change or amendment effected to these General Terms and Conditions shall be made available at the Bank’s Premises and on the Bank’s Internet Site.
3. Unless otherwise stated in the relevant Account Opening Form entered into and concluded by and between Pilatus Bank plc, a public limited company registered and incorporated in Malta with company registration number C 62995 and licensed as a credit institution under the Banking Act (Cap. 371 of the laws of Malta) (hereinafter referred to as the “Bank”) and the client (hereinafter referred to as the “Client”), and relating to the types of accounts and services to be made available by the Bank to the Client (hereinafter referred to as the “Agreement”), these General Terms and Conditions form an integral part of the Agreement. The Bank may issue additional conditions (hereinafter referred to as the “Special Conditions”) regulating the legal relations between the Bank and the Client in the event that the Bank provides additional services and transactions which are not regulated by these General Terms and Conditions. In the case of conflict between the provisions and terms contained in the Special Conditions and the provisions and terms contained in the General Terms and Conditions, the provisions and terms of the Special Conditions shall, unless otherwise stated herein, prevail.
4. These General Terms and Conditions shall be deemed accepted by the Client upon signature of the Account Opening Form. These General Terms and Conditions shall replace any agreement or understanding the Bank and the Client may have had in the past. An existing Client shall be bound by the current General Terms and Conditions once these General Terms and Conditions are published and made available at the Bank’s premises and on the Bank’s Internet Site.
5. The Bank may amend, vary or supplement these General Terms and Conditions or any other terms and conditions governing any Account or Service at the Bank’s discretion. Such changes will become effective immediately.
6. These General Terms and Conditions shall apply subject to any specific modifications expressly agreed to between the Bank and the Client, in writing, from time to time.
7. These General Terms and Conditions are published and made available at the Bank’s Premises and on the Bank’s Internet Site.
8. The General Tariffs to which these General Terms and Conditions refer are published and made available at the Bank’s Premises and on the Bank’s Internet Site.
9. For purposes of these General Terms and Conditions, (a) the term “Bank’s Internet Site” shall refer to www.pilatusbank.com or any other website that may be notified from time to time by the Bank to the Client for communication with the Bank; (b) the term “Bank’s Premises” shall refer to the operation premises as referred to on the Internet Site; and (c) “Account Opening Form” means a form provided by the Bank to the Client to be completed by the Client for the purposes of opening an Account with the Bank.
II. INFORMATION AND CONFIDENTIAL DATA
A. Confidential information and confidential data
1. The Bank only collects information that it believes to be relevant and necessary in the context of the banking Services requested by the Client or which the Client volunteers to provide the Bank with. All the Bank’s forms and agreements clearly indicate which information is necessary for the Bank to provide the Services requested.
2. The Bank may use the information that it collects about its Clients in the following manner and for the following purposes: (i) identification and verification of the Client; (ii) the provision of information or other Services in relation to any specific requests that the Client may make to the Bank; (iii) internal assessment and analysis; (iv) research and statistics; (e) the detection and prevention of illegal acts; (v) the development and improvement of the Bank’s products and services; (vi) the provision of a personalized service; (vii) direct marketing purposes by whatever medium or means of communication; (viii) recovery of debts.
3. The Bank strives to ensure that Client information is kept safe and secure at all times. Access to a Client’s personal information is restricted to the Bank’s employees on a need-to-know basis.
4. The Client may request a copy of the personal data that the Bank holds in his/her respect, and to have any inaccuracies corrected.
5. The Bank, including any officers or agents of the Bank, shall treat all information relating to the Client which it has acquired in the performance of its duties in terms of the Agreement, these General Terms and Conditions, any Specific Conditions or any relevant law, as confidential in compliance with the applicable laws, and shall not disclose such Confidential Information during the validity and after termination of the contractual relationship with the Client, except: (a) when authorized to do so under any provision of law; (b) for the purpose of the performance of its duties or the exercise of its functions; (c) when lawfully required to do so by any court or under a provision of any law; and (d) to the extent authorized by the Client under circumstances agreed to in these General Terms and Conditions or in any other contractual relationships, including the Agreement, between the Bank and the Client or when the Client grants the Bank explicit permission. “Confidential Information” means: (i) all information, including documentation and the contents thereof, relating to the Client which is regarded as subject to secrecy obligations in accordance with the Banking Act (Cap. 371 of the laws of Malta), the Criminal Code (Cap. 9 of the laws of Malta), the Professional Secrecy Act (Cap. 377 of the laws of Malta) and subject to data protection obligations in terms of the Data Protection Act (Cap. 440 of the laws of Malta);and (ii) all information concerning the Client, which is indicated by the Client as confidential in relation to the relevant agreement.
6. The Client shall treat all information and documents relating to the Bank, including the contents thereof, as confidential and shall not disclose such Confidential Data during the validity and after termination of the contractual relationship with the Bank, except: (a) when authorized to do so under any provision of law; (b) when lawfully required to do so by any court or under a provision of any law; or (c) to the extent authorized by the Bank under circumstances agreed to in these General Terms and Conditions or in any other contractual relationships between the Bank and the Client or when the Bank grants the Client explicit permission. The Client is liable, during the existence of a contractual relationship with the Bank, and also after termination thereof, to ensure the confidentiality on the Confidential Data made available to him, to protect such data against theft, loss, damage, misuse, and not to use the Confidential Data for his own benefit or for the benefit of any third persons. The Client is authorized to disclose the confidential data to: (i) his authorized representatives, auditors, professional advisers; or (ii) where such Client is a legal person, to a parent or subsidiary of the Client. “Confidential Data” means all information, including the content of an agreement, any facts of commercial nature, business contacts, and business customs, and also all information and facts relating to the Bank, of which the Client is aware in connection with the performance of an agreement and/or the execution of a transaction. Confidential Data does not cover any information which is or which becomes public information in any way, other than by a breach of the Client’s obligation of confidentiality agreed to with the Bank.
7. Personal data in relation to transactions effected via SWIFT and/or SEPA Payment Order may be required to be disclosed to the authorities in the United States of America, Canada, EU Member States or EEA Member States in order to comply with legal requirements applicable in the respective jurisdiction. The Client hereby irrevocably and without limitation authorizes the Bank to disclose his personal data to the authorities in the United States of America, Canada, EU Member States or EEA Member States to the extent required so that the Bank may comply with the legal requirements applicable in the respective jurisdiction. The Client’s authorization in terms of this clause shall survive the termination of these General Terms and Conditions.
III. NOTICES, DELIVERY AND DOCUMENTS
A. Notices
1. The Bank and the Client shall respectively notify each other promptly with respect to any events and facts which may be material to their relationship, and undertake to respond instantly to any mutual queries regarding the same. The Client shall, without undue delay, notify the Bank, whether in writing with respect to any changes relating to data submitted to the Bank regarding the contractual relationship between the Bank and the Client and to submit to the Bank all the documents and information supporting such changes.
2. All notices and information under any Agreement, the Special Conditions or these General Terms and Conditions shall be: (i) drawn up in English; and (ii) made in writing in accordance with Part XV.
3. The Client shall indemnify the Bank for any damage, claim or loss suffered directly or indirectly by the Bank as a consequence of the Bank’s actions based on any notice or other information submitted to the Bank by the Client or its duly authorized persons.
B. Delivery
1. Subject to Part XV, notices and other communication (for the purposes of this section hereinafter referred to as the “Notifications“) sent by the Bank to the Client shall be considered properly delivered if sent to the last address supplied by the Client to the Bank. Notifications sent to the Client by mail may be sent as ordinary mail or registered mail and are regarded delivered upon expiry of seven (7) days after dispatch. Notifications sent to the Client by “advice of delivery” (return receipt) are considered delivered upon receiving the confirmation of delivery. If the mail by “advice of delivery” is not collected it shall be deemed delivered on the reported day of dispatch even though the recipient was unaware of such dispatch.
2. The Bank shall not be responsible for any damages arising from the use of postal services, telephone, fax, or other means of communication or transportation, other than if the Bank has acted with gross negligence. In particular, the Bank shall not be responsible for any loss, delay, misunderstanding, damage or duplicate mail.
3. The Bank may require that the Client delivers notices and other communication on a specific form or by specific means. The Bank is authorized to request that the Payment Orders (as defined below) personally delivered by the Client are delivered only by the persons appointed by the Client as listed on the apposite list provided by the Bank. Persons that are authorized to act in the Client’s name or are authorized to dispose of the financial means on the Account (as defined below) and/or to submit orders to execute transactions with the Bank in compliance with the Signature Card (as defined below)/relevant power of attorney, are deemed authorized to personally deliver Payment Orders even if not included in the aforementioned list.
C. Documents
1. Unless agreed otherwise, any document evidencing or containing the Bank’s commitment shall be duly entered into by the Bank and may be enforced against the Bank only if: (i) any one or more of the person or persons authorized from time to time to represent the Bank, whether individually or jointly as the case may be, sign such document; or, (ii) the documents are duly authenticated by the correct SWIFT key. The list and specimen signatures of the duly authorized officers of the Bank, and the information as to whether such persons may act individually or jointly, are available for inspection upon request in writing, as the Bank shall determine.
2. The Bank may inspect all written documents, notices, orders and instructions received from the Client to determine whether the signature(s) therein correspond(s) with the specimen signature(s) on the Signature Card (as defined below) or relevant powers of attorney submitted to the Bank. The Bank may refuse to execute the transaction if the signature(s) on such document, notice, order or instruction does (do) not correspond with the specimen signature(s) on the Signature Card (as defined below) or relevant powers of attorney, or if the Bank does not receive the document, notice, order or instruction from the Client in the form and content required by the Bank. The Bank shall not be responsible for any consequences resulting from false orders or instructions, subject to the condition that the Bank acted with due diligence in verification thereof.
3. The Client understands and accepts that in order to secure the identity of the authorized signatory(s), the Bank reserves the right to request original signed instruction(s) to place and/or close margin foreign exchange positions.
4. The Bank has the right to request at its discretion that the Client submits authenticated copies of documents. The Bank has the right to demand that such documents are authenticated legalized, and / or “Apostilled”, as the case may be.
5. The Bank may investigate whether the documents, which are to be accepted upon the agreement with the Client, comply with the contents of the Agreement.
6. The Bank is not liable for the correctness, authenticity, and completeness of the contents or for translation of any documents submitted by the Client to the Bank, and/or for the validity and effect thereof.
IV. REPRESENTATION OF THE CLIENT, IDENTIFICATION
A. Representation of the Client
1. Where the Client is a legal person any such legal person shall, for the purposes of the matters referred to herein, be represented by the lawful representative of the Client in accordance with applicable law. Where the Client is a natural person, such natural person shall act for his/her own account and on his/her own behalf for the purposes of the matters referred to herein.
2. A Client may: (i) generally authorize and appoint any natural or legal person or persons whether acting individually or jointly, to act for his/her own account and on his/her own behalf by executing the Bank’s Standard Form Mandate; or (ii) grant a specific power of attorney in favour of any person or persons, whether acting individually or jointly, with the effect that such persons so authorized in terms of (i) or (ii) may, inter alia, as the case may be represent the Client in matters relating to the Bank, make dispositions and effect transfers from or to the Account (as defined below) of the Client and/or to submit orders to execute transactions from or on the Account of the Client, until such time as the Client may direct. The Bank has the discretion to accept or reject any appointment made in terms of this section 2 Part IV A. For the purposes of these General Terms and Conditions, a “Bank’s Standard Form Mandate” means a document provided by the Bank to the Client whereby the Client grants a power of attorney to a person, whether natural or legal, to a person to act for its own account or on its own behalf in such matters in relation to the Bank as are referred to in the Bank’s Standard Form Mandate.
3. Notwithstanding the foregoing, the Bank may request from the Client a specific power of attorney in connection with the execution of a transaction of whatever nature with the effect that, notwithstanding the existence of any other authorization, persons may not execute transactions on or from the Account of the Client unless such specific power of attorney has been provided to the Bank upon its request.
4. In any of the cases referred to in sections 1, 2 and 3 above:
(a) where the Client is a legal entity or a legal person acts on behalf of a Client, the Bank shall be entitled to request that the Client provide any documents evidencing that a duly authorized representative has been appointed on behalf of such legal entity;
(b) the Client shall in all cases provide the Bank with specimen signatures of the persons authorized to represent the Client (the “Signature Card”);
(c) the power of attorney, whether general or specific, as well as any other authorization as evidenced by the relevant Signature Card shall remain in force until such time as the Bank receives a written notice from the Client informing the Bank of the relevant termination.
5. The Client shall notify the Bank in writing, excluding the use of electronic means, without delay of: (a) any change in the identity of the person appointed to represent the Client, whether natural or legal, in terms of sections 1, 2 or 3 above; (b) the revocation of, termination of, or amendment to, any powers of representation conferred on any person appointed to represent the Client or any other representative of the Client in respect of any transactions with the Bank. The Client acknowledges that any filings with any public authority of any details of any legal person or statutory body, any powers of representation or any changes thereto will not be sufficient to satisfy its obligations under this section. For the avoidance of doubt, any such change, amendment to, termination or revocation of a power of representation will be without prejudice to the completion of any transaction that has been or is in the process of being executed by the Bank prior to the date of receipt of a notification under this section. Any transaction executed by a person appointed by the Client in terms of section 1, 2 or 3 above prior to the date of notification of any change referred to in this section shall be binding on the Client.
6. Changes concerning the Signature Card and/or any powers of attorney are binding on the Bank as of the Bank Business Day immediately following the day of their delivery and receipt by the Bank.
7. In the event of any change in terms of section 5 above, the Client shall provide the Bank with a new Signature Card with the new details of such new signatory.
8. Unless the Bank otherwise so permits, in the event that a legal person or statutory body represents the Client and such legal person has more than one member, the consent of all the members of such legal person is required to validly effect any restriction to or the termination of any restriction of the right to dispose of any funds in the Account (as defined below) of a member of the statutory body. If a dispute arises between the members of the legal person or statutory body in relation to the representation of that legal body or statutory body of the Client before the Bank or in relation to any powers of representation in relation the Account of the Client, or other matters related to any powers in relation to the Account (as defined below), any member of such legal person or statutory body may lodge a written complaint to the Bank informing the Bank of the nature of such dispute. From the date when the complaint is lodged until such time as the dispute is resolved, the members of the legal body or statutory body, as the case may be, may only effect transactions in or from the Account (as defined below) by acting with unanimity.
B. Identification
1. The Bank shall request due evidence of the Client’s identity for every transaction, and shall not permit that any transaction, of whatever nature, is effected where that the identity of the Client has not been ascertained to the satisfaction of the Bank.
2. The Bank may accept as proof of identity of the Client: (i) a copy of an identification card issued by the competent authority in Malta where the Client is a citizen of Malta; or (ii) a copy of a passport if the identified person is a person other than a citizen of Malta. The Bank may accept any other document as proof of identity provided that such document validly verifies the identity of the Client in accordance with applicable legislation and to the reasonable satisfaction of the Bank. Where a transaction is effected electronically the Client shall be identified by a personal identification number and by an authentication code provided to the Client by the Bank, or by an electronic signature.
3. In the event that the Client delivers a paper Payment Order to the Bank by fax, the Client shall provide the Bank with a letter of indemnity with such contents and in such form as required by the Bank. Upon satisfaction of the form, nature and validity of the letter of indemnity as delivered and provided to the Bank, the Bank shall proceed to execute the Payment Order of the Client. The Bank is entitled to refuse to execute a Payment Order until such letter of indemnity is provided to and received by the Bank.
V. ACCOUNTS
A. Account
1. The Bank may, at its sole discretion and without giving any reason therefor, refuse to open an Account for any Client. An “Account” means an account, of whatever nature, held with the Bank and shall include a precious metals account and a stock account, and any other securities account.
2. In requesting the Bank to establish an Account, the Client agrees to complete the Account Opening Form fully and truthfully. The Client also agrees to provide the Bank with any supplementary information and documentation that it may require to undertake its due diligence obligations as required under the applicable legislation. The Bank may undertake searches with appropriate credit reference and other agencies as well as databases prior to opening an Account, and in view of this the Client consents to any disclosure of information that the Bank makes to such credit reference agencies.
3. The currency in which the principal Account may be opened shall be determined by the Bank at its discretion despite of the Clients desire or request on the Account Opening forms or subsequent communications. Currencies in which an Account may be opened shall be made publicly available at the Bank’s Premises or on the Bank’s Internet Site. The opening of an Account is conditional upon the submission by the Client of all documents which the Bank, in its sole discretion, considers necessary.
4. An Account of legal persons and sole proprietors/sole traders shall, to the extent applicable, bear the corporate name, registered office/address, company registration number and the Account number. An Account of a natural person shall bear the name, surname, permanent address, date of birth, birth number or identity card/passport number and the Account number. The Bank may at its sole discretion and at any time change the Account number and the Client shall be notified about such change at least two (2) months prior to such change.
5. The Client shall ensure that Account(s) are funded at all times. If the Client breaches this condition for three (3) consecutive calendar months, or one (1) calendar month in the case of a re-activated account, the Bank may close the relevant Account by written notice to the Client. Where a termination period is stated in the written notice to Client, that termination period shall commence on the date of delivery of the termination notice.
6. The Bank is hereby authorized to collect any fees due by the Client in respect of a particular Account by charging any fees due to any related Client Accounts. Related Client Accounts shall either refer to Accounts pertaining to the same natural person or Accounts pertaining to entities that function through a common source of control.
7. If the Account is not active for more than six (6) consecutive calendar months, the Bank may send the Client a written notice informing him/her of the inactivity of the Account. The Bank may close the relevant Account by written notice to the Client. Where a termination period is stated in the written notice to Client, that termination period shall commence on the date of delivery of the termination notice. For the avoidance of doubt, the receipt of funds to an Account shall not constitute inactivity of the Account.
7. The relevant dormant account fees and charges shall apply as per the Bank’s General Tariffs in either of the following scenarios: (a) an Account is inactive for more than six (6) consecutive calendar months; (b) an Account lacks initial funding for three (3) consecutive months from account opening; or (c) an Account lacks funding for one (1) calendar month from the date of reactivation.
8. This Agreement or any other agreement under which the Account was opened, shall be concluded for an indefinite period of time, unless otherwise agreed between the Bank and the Client.
9. In relation to a SEPA Payment Order for a Direct Debit (as defined below), the Bank may open three types of Accounts for the Client:
a) a “No Direct Debiting Account”, means an Account on which no SEPA Payment Order for a Direct Debit (as defined below) may be executed by the Bank;
b) a “No Protection Account”, means an Account on which any SEPA Payment Order for a Direct Debit (as defined below) shall be executed by the Bank without the Bank having to request the Client to give a Consent to a Direct Debit (as defined below) or to demonstrate that a consent to the execution of the SEPA Direct Debit has been given by the Client to the beneficiary or to the bank of the beneficiary; and/or
c) a “Conditional Debiting Account”, means an Account on which a SEPA Payment Order for a Direct Debit (as defined below) shall be executed by the Bank only where a Consent to a Direct Debit (as defined below) has been provided by the Client to the Bank irrespective of whether consent to the execution of the SEPA Direct Debit has been given by the Client to the beneficiary or to the bank of the beneficiary.
10. Each Account opened by the Bank shall be, in relation to the SEPA Payment Order for a Direct Debit, a Conditional Debiting Account.
11. The Client may at any time request the Bank in writing to change the type of the Account in relation to a SEPA Payment Order for a Direct Debit. If the Client requests to change the type of the Account, such change becomes effective on the next Bank Business Day following delivery of such request to the Bank.
12. Where No Direct Debiting Account or No Protection Account is opened for the Client, such Account shall be the Conditional Debiting Account no later than the next Bank Business Day following delivery to the Bank of the Consent to a Direct Debit on such Account
13. The Bank is authorized to charge a fee as specified in the General Tariffs for opening the No Direct Debiting Account. The Bank is further authorized to charge a fee as specified in the General Tariffs in the event that the type of the Account is changed by the Client.
14. For the avoidance of doubt, the opening of an Account with the Bank of the type referred to in this Part V A section 1, shall be construed as a contract of mutuum in accordance with the provisions of the Civil Code (Cap. 16 of the Laws of Malta). In the absence of a specific statement to the contrary, the Client’s consent to the lending to, and use by, the Bank of any assets or funds deposited in an Account in accordance with the provisions applicable to mutuum under the Civil Code (Cap. 16 of the Laws of Malta) is hereby implicitly construed.
B. Joint account
1. Clients may open Joint Accounts. A “Joint Account” means an account for two or more Clients which may be opened upon conclusion of specific agreement between such Clients and the Bank. All such Clients are authorized and shall act in all matters relating to the Joint Account jointly. The Bank is not required to investigate any mutual entitlements of the Clients to the deposits in a Joint Account and takes no responsibility for any wrongful interventions into ownership or any other rights.
2. Notwithstanding the provisions of section 1 of Part V B above, Joint Account holders may agree that the following matters in relation to the Joint Account shall be executed by any one or more of the Joint Account holders: (i) the disposition of the assets deposited with the Bank in the Joint Account; (ii) the disposition of the Account balance on the Joint Account; (iii) the pledge of the assets and/or the Account balance of the Joint Account; and (iv) the issuance of instructions or the grant of approval of any kind and power of attorney to third parties in relation to the Joint Account. A Joint Account holder may, with the consent of the other Joint Account holders, close the Joint Account.
3. Joint Account holders of a Joint Account shall be deemed to have the same rights and be liable in the same way as owners in common in accordance with the provisions of the Civil Code (Cap.16, Laws of Malta). Accordingly, Joint Account holders of a Joint Account shall be jointly liable for the obligations of one Joint Account holder in relation to the Joint Account.
4. In the event of the death of a Joint Account holder, only the remaining Joint Account holder(s) shall be entitled to (i) dispose of the assets deposited with the Bank in the Joint Account; (ii) dispose of the Account balance on the Joint Account; (iii) pledge the assets and/or the Account balance of the Joint Account; and (iv) issue instructions or give any approval of any kind and power of attorney to third parties in relation to the Joint Account; and (v) generally to take decisions in relation to the Joint Account. Provided that, the Bank may disclose to the heirs of the deceased Joint Account holder, upon satisfaction of their identity, any information which it deems appropriate in relation to the relevant Joint Account.
5. The provisions of this Part V B govern the relationship between the Bank and the Joint Account Holders and do not purport to affect or regulate the relationship between the Joint Account holders amongst themselves or the relationship between the Joint Account Holders and their heirs.
6. A Joint Account shall be governed by the provisions of these General Terms and Conditions.
C. Capital contribution account
1. The Bank may open a capital contribution Account (also referred to as a company in formation account) (hereinafter referred to as the “Capital Contribution Account”) for any legal person where such legal person is under an obligation to deposit an initial capital contribution representing share capital prior to its registration with a relevant Registry of Companies or Registrar of Legal Persons, as the case may be (hereinafter referred to as the “Client under Establishment”). The Capital Contribution Account shall be opened upon delivery to the Bank of a certified true copy of the memorandum and articles of association or other constitutive documents where such Client under Establishment is a company, the partnership agreement where the Client under Establishment is a partnership, the foundation deed where the Client under Establishment is a foundation, or any other statutes or other documents of such Client under Establishment, as the case may be and as may be required by applicable law.
2. The depositor of the money deposit in the Capital Contribution Account is not authorized to dispose of the funds on the Capital Contribution Account. The Signature Card shall not be signed by any person in respect of the Capital Contribution Account. The Bank shall issue a confirmation of the money deposit upon the request of the depositor.
3. In the event that the Client under Establishment does not acquire legal personality and accordingly is not registered with the relevant Registry of Companies or Registrar of Legal Persons, the Bank shall close the Capital Contribution Account upon the decision of the competent authority or upon the submission of an original or verified true copy of such decision or upon the submission of any other relevant document evidencing that the Client under Establishment was not registered in the relevant Registry of Companies or with the Registrar of Legal Persons, and shall return the money deposit to the depositor.
4. If the Client under Establishment is registered with the relevant Registry of Companies or Registrar of Legal Persons, as the case may be, the Bank shall change the Capital Contribution Account to the Account as described in Part V A section 1 or Part V B section 1 hereof after submission of a verified true copy of the certificate or any other relevant document evidencing that the Client under Establishment was successfully registered in the appropriate Registry.
5. The Capital Contribution Account shall be otherwise governed by the provisions of these General Terms and Conditions accordingly.
D. Account statement
1. Unless otherwise instructed by the Client in writing, the Bank shall not send the Client the Account balance statement and the Account credit and debit entries (hereinafter referred to as the “Account Statement“). The Bank is authorized to charge a fee as specified in the General Tariffs with respect to each Account Statement sent, provided or made available to the Client.
2. If the Client has requested to collect the Account Statements personally from the Bank Premises, the Bank shall retain the Account Statements on behalf of the Client at the Bank. The Bank shall consider such Account Statement as delivered on the day of its issue by the Bank and not the date of collection from the Bank Premises by the Client. The Bank shall provide Account Statements only to persons authorized for this purpose and only after the Bank verifies their identity. The Bank shall not be liable for any loss or damage that the Client may incur as a result of any delay in collection of the Account Statements by the Client or provision of such Account Statements by the Bank.
3. At the end of each calendar year the Bank may request a written confirmation of the Account balance from the Client.
4. The Bank may correct any erroneous entry in the Account by debiting or crediting the Account, even where an Account Statement containing such erroneous entry may have already been sent by the Bank to the Client. The Bank shall notify the Client of any such corrections made to the Account.
E. Interest
1. Where applicable, the Bank may pay interest on the credit balance of the Account. Unless special conditions are agreed upon between the Bank and the Client, interest rates applicable for the credit balance on the Account are determined by the Bank and specified in the General Tariffs and/or published on the Bank’s Internet Site and at the Bank’s Premises. The Bank is authorized to change interest rates applicable to the credit balance on the Account depending on any changes on the relevant interbank market and the Bank’s business policy. In the event that the Bank changes interest rates, the Bank shall make available the changed interest rate on the Bank’s Internet Site, at the Bank’s Premises or publish them in the appropriate public media.
2. Overnight Interest Rate payable on all liabilities including cash and securities is fixed at 0.00%.
3. In the event that the change in the interest rate is favourable to the Client, the Bank is not required to notify the Client of the changed interest rate.
4. Unless otherwise agreed, the Client must maintain credit balance on the Account in accordance with Part V A section 5. If the Account is overdrawn or exceeds an agreed overdraft limit or drawdown, the Client shall immediately make a payment sufficient, and in the relevant currency, to cover the overdraft or the amount in excess of the agreed overdraft limit or drawdown. The Bank may refuse to execute any Payment Instruction (as defined below) or allow any cash withdrawal if the payment transaction shall cause the overdraft limit or drawdown to be exceeded.
5. The Bank reserves the right, at any time, to withdraw the Client’s right to overdraw the Account and/or require the Client to repay or reduce the debt related to the overdraft on the Account.
6. If no overdraft limit or drawdown has been agreed between the Bank and the Client or, if the Client is not authorized to draw, any debit balance on the Account shall be regarded as an unauthorized overdraft of the Account and the Bank will charge unauthorized overdraft interest on such unauthorized overdraft of the Account. In the event the Bank and the Client have agreed on an overdraft limit or drawdown, any amount drawn down in excess of the agreed overdraft limit or drawdown shall be regarded as an unauthorized overdraft of the Account. For the avoidance of doubt, the existence of an unauthorized overdraft on the Account does not signify the Bank’s consent or agreement of such overdraft or drawdown when such amount in excess of the agreed overdraft limit or drawdown has been provided by the Bank.
7. Unless specific conditions have been agreed upon between the Client and the Bank, interest rates applicable for the unauthorized overdraft of the Account are determined by the Bank and specified in the General Tariffs and/or published on the Bank’s Internet Site and at the Bank’s Premises. The Bank, in accordance with the applicable calculation method, determines interest rates applicable for the unauthorized overdraft of the Account as specified in the General Tariffs or, where applicable, in accordance with Specific Conditions agreed between the Bank and the Client.
8. As interest rates applicable for the unauthorized overdraft of the Account are based on the external reference rates, the Bank may, at any time, change interest rates with immediate effect and without prior notice to the Client. In the event that the Bank so changes interest rates, the Bank shall make available the changed interest rate on the Bank’s Internet Site, at the Bank’s Premises or publish them in the appropriate public media. In case the change in the interest rate is favourable to the Client the Bank may choose not to notify the Client of the changed interest rate.
9. Interest will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days for interest payable by the Client and 365 days for interest payable by the Bank.
10. The interest payable by the Bank to the Client and the interest payable by the Client to the Bank shall be due and payable in arrears on the first day of each calendar month or at such other times that the Bank may agree with the Client. The amount of the unauthorized overdraft of the Account is due and payable immediately. The Client shall pay all costs which may be incurred in relation to an unauthorized overdraft, including any legal fees relating to the collection of an unauthorized overdraft of the Account.
11. The Client hereby irrevocably authorizes the Bank to debit any Account with all interest as and when interest falls due or at any time after such date. Interest shall be automatically debited from the Account on the date on which it falls due and shall be subject to unauthorized overdraft interest if not paid immediately.
12. Unless advised otherwise by the Client, withholding tax, at a rate fixed by the Maltese tax authorities, will be deducted from interest payments to Clients who are resident in Malta.
VI. PAYMENT SERVICES
A. General provisions
1. When performing payment services and executing payment operations the Bank shall proceed in accordance with any applicable legislation or EU Regulation. When performing certain payment services and executing certain payment operations, the Bank shall comply with the applicable SEPA rules of the European Payments Council (hereinafter referred to as the “SEPA Rules”). Unless otherwise stipulated in these General Terms and Conditions, in the event of any discrepancy between these General Terms and Conditions and the SEPA Rules, the SEPA Rules shall prevail and the Bank shall act in accordance with the SEPA Rules.
2. The Bank does not provide services of receipt of funds for persons who do not have an Account or a deposit account opened with the Bank.
3. The terms below shall have the following meaning:
(i) A “Payment Instruction” means an unambiguous instruction in written or electronic form submitted to the Bank for the execution of Transfers of Funds or for Direct Debits;
(ii) A “Payment Order” or “Transfer of Funds” means the debiting of funds from the Account under the Payment Instruction submitted by the Client;
(iii) A “Direct Debit” means the debiting of the funds from the Account under the Payment Instruction submitted (initiated) by a third party beneficiary (hereinafter referred to as the “Payment Order for a Direct Debit”) and under the consent of the Client given to the Bank, to the third party beneficiary or to the bank of the third party beneficiary; and
(iv) A “Stand-by Payment Instruction” means a Payment Instruction given for repeated transfers or Direct Debits.
4. A “SEPA Payment Order for a Direct Debit” or a “SEPA Direct Debit” means a Payment Order for a Direct Debit in the euro currency for debiting the Account in euro currency and crediting a payment account of a third party beneficiary held with a bank with its registered seat in a SEPA country. The Client’s consent for the execution of a SEPA Direct Debit shall be given to the beneficiary for the Bank to execute a SEPA Payment Order for a Direct Debit or a SEPA Direct Debit. The list of SEPA countries is available on the Bank’s Internet Site.
5. When executing a SEPA Payment Order for a Direct Debit, the Bank shall proceed in accordance with the SEPA Rules for Direct Debits (hereinafter referred to as the “SEPA Direct Debit Rules”). The Bank executes only the SEPA Direct Debits designated in the SEPA Direct Debit Rules as the SEPA core Direct Debit scheme.
6. The Bank shall debit an Account on the basis of a Payment Instruction. Where no Payment Instruction has been given, the Bank is entitled to debit the Account:
a) for the purposes of enforcing a decision taken by a judicial or regulatory authority or for the purposes of fulfilling an obligation imposed on the Bank by a specific law or regulation;
b) for the purposes of settlement of all prices and actual expenses for the provision of the Bank’s services, for the settlement of due debit interests, including an unauthorized overdraft interest, and in those circumstances where the Bank is entitled to do so under an agreement; or
c) where the debiting of the Account has been agreed to in writing between the Bank and the Client.
7. The Bank shall not execute any Payment Order for a Direct Debit, other than a SEPA Payment Order for a Direct Debit.
B. Point in time of receipt of Payment Instruction
1. In a Payment Instruction, the Client may determine the date of initiating an execution of the transaction (hereinafter the “Due date”).
2. Unless otherwise provided by the Client in the Payment Instruction, the date of receipt of a Payment Instruction or Stand-by Payment Instruction by the Bank is the Due date set forth in the Payment Instruction or in the Stand-by Payment Instruction. For the avoidance of doubt, if the Client in the Payment Instruction gives no Due date, the point in time of receipt of such Payment Instruction will be the day on which the Bank receives the Payment Instruction.
3. The date of receipt of the Payment Instruction shall be considered the date when the Payment Instruction was received by the Bank where the Due date is any date before the day or on the day of receipt of the Payment.
4. In respect of a Payment Instruction marked as “NOSTP“, the Client determines as the Due date a date not earlier than the date when another instruction for transfer has been delivered to the Bank by the Client, irrespective of the Due Date set forth in the Payment Instruction.
5. The Bank may establish a time (hereinafter referred to as the “Cut-off Time”) after which any Payment Instruction received will be deemed to have been received by the Bank on the next Bank Business Day.
6. If the point in time of receipt of a Payment Instruction (with or without a Due date) in accordance with sections 2 to 4 of this Part, is not a Bank Business Day or is after the relevant Cut-off Time, the Payment Instruction will be considered to have been received on the following Bank Business Day.
C. Consent and withdrawal of consent to Payment Instruction
1. Consent and withdrawal of consent to the execution of Transfer of Funds
1.1 The Bank is hereby authorized, but not required, to act upon a Payment Order to which the Client has consented in accordance with these General Terms and Conditions.
1.2 The Client’s consent to execute a Payment Order (hereinafter referred to as “Consent to a Payment Order”) must be given to the Bank:
a) By sending or delivering in person to the Bank a Payment Order duly signed by the Client or persons authorized to sign on behalf of the Client, in case of a Payment Order in written form; or
b) By sending a Payment Order signed by the Client or duly signed by persons authorized to sign on behalf of the Client to the Bank; or
c) In the case of an electronic Payment Order, by sending a Payment Order to the Bank by using the correct security features under the terms of the Special Conditions submitted to the Bank via the Bank’s Electronic Payment Service or by sending a Payment Order to the Bank, via SWIFT.
1.3 The Bank is authorized to consider a Transfer of Funds under a Payment Order, to the execution of which the Client has given its consent in accordance with this section to be an authorized payment transaction. For the purposes of these General Terms and Conditions, the “Bank’s Electronic Payment Service” means a service provided by the Bank whereby Clients may effect payment and effect the Transfer of Funds electronically;
1.4 The Client can withdraw its Consent to a Payment Order (hereinafter referred to as “Revocation of a Payment Order”) at any time, but at the latest by the point in time of receipt by the Bank in accordance with sections 2 to 4 of Part VI B of these General Terms and Conditions and by the relevant Cut-off Time, if any, provided that such Payment Order has not been processed yet.
1.5 After the time limits for Revocation of a Payment Order specified in section 1.3 above have elapsed, Consent to a Payment Order may only be withdrawn, if agreed upon between the Client and the Bank, and where possible.
1.6 Consent to a Payment Order can be withdrawn in writing or in any other manner agreed upon between the Client and the Bank. The Bank may charge the Client for the Revocation of a Payment Order as specified in the General Tariffs.
1.7 In the case of Revocation of a stand-by Payment Order, each future transfer following the submission of such Revocation shall be considered as unauthorized.
2. Consent and withdrawal of consent to execution of Direct Debit
2.1 The Client shall give consent to the execution of the SEPA Direct Debit to the beneficiary. By delivery of a SEPA Payment Order for a Direct Debit to the Bank, the Bank is authorized to deem that the aforementioned consent for the execution of the SEPA Direct Debit was given to the third party beneficiary.
2.2 “Consent to a Direct Debit” means a Client’s consent given to the Bank in writing to execute a Payment Order for a Direct Debit. The Consent to a Direct Debit must be given a SEPA Direct Debit on the Conditional Debiting Account. The Consent to a Direct Debit must be given on the specific form determined by the Bank. The Bank may consider a copy of the Client’s written consent to the execution of the SEPA Direct Debit given to the third party beneficiary as the Consent to a Direct Debit. Unless indicated otherwise by the Client, the Consent to a Direct Debit shall become effective on the next Bank Business Day following delivery thereof to the Bank.
2.3 The Bank is authorized to deem a Direct Debit under a Payment Order for a Direct Debit, the execution of which the Client has given its consent to in accordance with section 2.1 and 2.2 of this Part, as an authorized payment transaction.
2.4 The Client shall ensure that sufficient funds are available on the Account in order for a Direct Debit to be executed properly and timely. The Client must ensure that the beneficiary will provide the Bank with all the correct information which is required for the execution of a Direct Debit.
2.5 The Client may withdraw its Consent to a Direct Debit (hereinafter also referred to as “Revocation of a Direct Debit”) in writing by not later than the end of the Bank Business Day preceding the day when the funds are to be debited from the Account. In the event that a Revocation of a Direct Debit has been submitted to the Bank, each future Payment Order for a Direct Debit to which the original consent was given shall be considered as unauthorized.
2.6 If the Client’s consent for the execution of the SEPA Direct Debit given to the third party beneficiary or the bank of the third party beneficiary is withdrawn, the Client shall revoke, within the time limit specified in section 2.5 of this Part, the relevant Consent to the Direct Debit given to the Bank. The withdrawal of the Client’s consent to the execution of the SEPA Direct Debit given to the third party beneficiary or to the bank of the third party beneficiary shall not be binding on the Bank and such withdrawal shall only be binding thereon until such time as the relevant Revocation of a Direct Debit is sent to the Bank by the Client.
2.7 After the time limits for the Revocation of a Direct Debit specified in section 2.5 of this Part have elapsed, Consent to a Direct Debit may only be withdrawn if agreed upon between the Client, the Bank and the beneficiary.
2.8 The Bank may charge the Client for Revocation of a Direct Debit as specified in the General Tariffs.
2.9 The Bank may refuse to execute a SEPA Payment Order for a Direct Debit or a single Direct Debit under a Stand-by SEPA Payment Order for a Direct Debit upon a request of the Client where the Client requests the Bank in writing not to execute the SEPA Payment Order for a Direct Debit no later than fourteen (14) Bank Business Days before the date, and no later than the end of the Bank Business Day preceding the date when the funds should be debited from the Account. The Client may request the Bank to refuse to execute the SEPA Payment Order for a Direct Debit only on the No Protection Account and/or the Conditional Debiting Account.
D. Execution of Payment Instructions
1. General Conditions for execution of Payment Instructions
1.1 The Client acknowledges that a Payment Instruction must contain complete and correct information requested by the Bank, must be legible and unambiguous, and submitted on valid forms or on other data carriers or means of communication designated by the Bank or agreed between the Bank and the Client.
1.2 The Bank is entitled to execute a Payment Instruction based on the information contained in the Payment Instruction, and to rely on such information. The Client shall be responsible for any errors or incorrect information in the Payment Instruction and which may lead to a Payment Instruction being refused or incorrectly executed. The Bank is not liable for any damage incurred by the Client or a third party in connection with the execution of a Payment Instruction containing any incomplete, incorrect or ambiguous data.
1.3 Prior to the execution of any Payment Instruction, the Bank may verify such instruction by making a telephone call to the telephone number specified in the relevant Account Opening Form, or any other telephone number as may from time to time be notified by the Client to the Bank or in any other appropriate manner. The Bank is entitled to treat any such verification as valid where the person responding to such call is or, in the opinion of the Bank appears to be, the person authorized to act on behalf of the Client in compliance with Part IV A of these General Terms and Conditions. The Bank shall proceed with regular due care.
1.4 In case of any incorrect or missing information in the Payment Instruction, the Bank is authorized to request the Client to provide in writing or in any agreed form such additional information as may be required by the Bank. In case the information required for the Payment Instruction is not received by the Bank within three (3) Bank Business Days following the day of the Bank’s request, the Bank shall refuse to execute the Payment Instruction. In the event that the aforementioned additional information required for the Payment Instruction and requested by the Bank is delivered to the Bank within the time specified in this Part, the Bank shall execute the Payment Instruction, provided that the Bank reserves the right to change any time limits specified in Part VII of these General Terms and Conditions for the execution of Payment Instructions or the refusal of Payment Instructions. In the event that any information in the Payment Instruction requires correction due to missing or incorrect information, the Bank is authorized to charge a fee to the Client in accordance with the General Tariffs.
1.5 The Bank shall execute Payment Instructions within the time limits specified in Part VII of these General Terms and Conditions.
1.6 The Bank will debit the amount stated in a Payment Instruction from the Account no earlier than such time as the receipt of such Payment Instruction by the Bank in accordance with Part VI B of these General Terms and Conditions.
1.7 In the event that the Transfer of Funds or Direct Debit could not be executed due to the absence of an account number of the third party beneficiary or due to any other reason, and the bank of the third party beneficiary returns the amount to the Account of the Client, the Bank shall credit this amount to the Account on the day the Bank received the amount of the transfer from the beneficiary. A cancellation fee and/or other charges, as necessary, shall apply as set out in the General Tariffs in the event that the Transfer of Funds or Direct Debit could not be executed for any of the reasons set out in this provision or other cause attributable to an act of commission or omission of the Client.
2. Unique identifier
2.1 Unless otherwise agreed, the Bank will execute and process a Payment Instruction only by taking into account the account number of the third party beneficiary (or IBAN, as appropriate) and bank code (or BIC, as appropriate) that is specified in such Payment instruction. A Payment Instruction so executed with such aforementioned considerations taken into account by the Bank shall be considered as correctly executed. The obligation of the Client to give the Bank the data as specified in Part VI G or, as the case may be, Part VI H of these General Terms and Conditions in a Payment Instruction shall not affect the execution of the Payment Instruction.
2.2 If the Client or, in case of a Direct Debit, the third party beneficiary or the bank of the third party beneficiary, has provided the Bank with an incorrect account number (or IBAN) and /or bank code (or BIC), the Bank shall not be liable for the non-execution or incorrect execution of a Payment instruction or for any losses incurred by the Client or third parties as a result of such incorrect information provided that the Bank shall make reasonable efforts to recover the funds involved in the payment transaction upon the request of the Client, or in the case of Direct Debit, upon the request of the third party beneficiary or the bank of the third party beneficiary. The Bank may charge for this service as specified in the General Tariffs.
2.3 Any information in the Payment Instruction other than the account number of the beneficiary (or IBAN, as appropriate) and bank code (or BIC, as appropriate) provided by the Client or, in case of a Direct Debit, by the beneficiary or the bank of the beneficiary, does not affect the responsibility of the Bank in relation to the execution of a Payment Instruction. The Bank shall not be liable for the execution of a Payment Instruction in accordance with any additional information or for the non-execution or incorrect execution of a Payment Instruction as a result of the Client or, in case of Direct Debit, the third party beneficiary or the bank of the third party beneficiary having provided any information additional to the account number of the beneficiary (or IBAN) and the bank code (or BIC).
3. Special conditions for execution of Payment Instructions
3.1 The Bank is entitled to establish special terms and conditions for the execution of particular transfers of funds or Direct Debits, in particular for Transfers of Funds or Direct Debits to certain countries or certain beneficiaries. The following constitutes a non-exhaustive list of circumstances in which the Bank may establish special terms and conditions:
a) The submission of auxiliary documents or materials;
b) The change of currency of the cross-border transfer in certain substantiated circumstances; and
c) The submission of a letter of indemnification to the Bank.
3.2 The Bank may, due to operational difficulties or reasons, set Special Conditions for the execution of Transfer of Funds, or Direct Debits primarily to change the method, Cut-Off Times and/or time limits for execution of Payment Instructions for a period of time and until such time as the Bank shall determine. The Bank shall notify such Special Conditions to the Client by publishing them on the Bank’s Internet Site and at the Bank’s Premises.
3.3 Unless the Payment Instruction contains specific instructions to which the Bank is bound, and without prejudice to the application of compulsory information contained in the Payment Instruction to which the Bank is bound, the Bank shall determine the method of execution of the Payment instruction, its delivery to the Bank, and the execution and delivery of documents, payment instruments or other valuables. Any such delivery shall be made on behalf of and at the risk of the Client. If necessary, the Bank may subcontract a third party to execute a Payment Instruction. The Bank shall not be responsible for losses due to failures or mistakes in the transmission of information or documents, or for the non-execution or incorrect execution of fund transfers or Direct Debits in accordance with the conditions specified in Part VI L and Part XI of these General Terms and Conditions.
3.4 In the event that the Bank receives any supplementary documents, documentation or letter of indemnity requested by the Bank for execution of transfer, the Bank may execute such transfer, however, the Bank reserves the right to change the time limits specified in Part VII of these General Terms and Conditions for execution of such transfer.
4. Balance of the Account
4.1 The Client must have a disposable balance on the Account: (i) for the execution of a Payment Instruction, a Payment Order or the Domestic Direct Debit, at least on the Cut-off Time from the receipt of such Payment Instruction, Payment Order or the Domestic Direct Debit; and (ii) for execution of a SEPA Direct Debit, at least one (1) Bank Business Day before the day of the debiting of the amount of the SEPA Direct Debit from the Account. The disposable balance on the Account means the available funds covering at the minimum the total transfer amount and the sum of fees for the transfer of funds or Direct Debit. If the disposable balance is available on the Account after the Cut-off Time for the Payment Order or the Domestic Payment Order for Direct Debit, the Bank may, at its sole discretion, execute the Payment Instruction provided that any operational conditions, which may be applicable to the Bank, permit this.
4.2 If the Client does not have a disposable balance on the Account or the Bank decides not to execute the Payment Instruction, the Bank shall retain the Payment Instruction for processing for three (3) consecutive Bank Business Days following the Due Date of the Payment Instruction. If the Client provides the disposable balance on the Account within this time period the Bank shall process the Payment Instruction on the Bank Business Day when at Cut-off Time the disposable balance on the Account is available. If the Client does not provide for the disposable balance on the Account within this time period, the Bank shall refuse to execute such Payment Instruction. The provisions of this section shall not apply to the SEPA Direct Debit.
4.3 In the event the Client shall not have a disposable balance on the Account for the SEPA Direct Debit, the Bank shall refuse to execute such SEPA Direct Debit.
4.4 In the event that more Payment Instructions with the same Due Date are delivered to the Bank and a disposable balance is not available on the Account in an amount sufficient for the execution of all such Payment Instructions, the Bank may execute the Payment Instruction upon the date and a time of delivery of a Payment Instruction or determine the priority of execution of such Payment Instructions and accordingly which Payment Instruction shall be executed and in which order.
4.5 In the event that multiple domestic Payment Instruction with the same Due Date are delivered to the Bank, the Bank shall execute the domestic Payment Instructions up to the amount of the disposable balance on the Account in the order as specified in the Payment Instruction.
5. Refusal of execution of Payment Instructions
5.1 Unless otherwise agreed, the Bank may refuse to execute a Payment Instruction in the following cases:
a) In the Bank’s opinion the Payment Instruction was not signed by persons authorized to sign on behalf of the Client;
b) The consent of the Client required under these General Terms and Conditions to be given to the Bank was not given for the execution of the Payment Instruction or such Consent was withdrawn;
c) The Payment Instruction does not contain the information required by the Bank, is incomplete, incorrect, ambiguous, illegible or inaccurate;
d) The Payment Instruction was not submitted on valid forms or on other data carriers or means of communication designated by the Bank or agreed between the Bank and the Client;
e) Special conditions for execution of particular transfers of funds or Direct Debits defined by the Bank according to Part VI D, section 3.1 of these General Terms and Conditions were not satisfied;
f) If special conditions for the execution of Payment Instructions were set by the Bank according to section 3.2 of Part VI D, of these General Terms and Conditions;
g) In the event any circumstance referred to in Part X A section 5 of these General Terms and Conditions has occurred;
h) If, in the Bank’s opinion, the execution of the Payment Instruction violates any applicable law or internal regulations of the Bank or is not in compliance with the business policy of the Bank;
i) In the event of a Transfer of Funds or Direct Debit, from or to the country or territory towards which valid political and economic sanctions of those countries are declared, whose jurisdiction directly affects activities or business of the Bank. The foregoing also applies to persons with residency, citizenship or who have a permanent address in such country or territory;
j) In the event that the verification of the Payment Instruction according to Part VI D section 1.3 of these General Terms and Conditions cannot be made;
k) In the event that the Payment Instruction is given by a person other than a person authorized to deliver Payment Orders in accordance with Part III;
l) In the event of a Transfer of Funds or a Direct Debit in a currency in which Transfers of Funds or Direct Debits are not executed by the Bank;
m) If the Account is blocked, the funds on the Account are blocked, or there is any other restriction for the use or availability of the funds on the Account;
n) In the event of the SEPA Payment Order for a Direct Debit on the No Direct Debiting Account; or
o) In any other cases specified in these General Terms and Conditions or in the Special Conditions, in the SEPA Direct Debit Rules or agreed between the Bank and the Client.
5.2 The Client acknowledges that the Bank is not liable for any loss or damage incurred or suffered by the Client or a third person as a result of the Bank so refusing or delaying the execution of a Payment Instruction.
5.3 If the Bank refuses a Payment Instruction, the Bank will notify the Client of such refusal without delay, whether in writing or by any other means of communication agreed. Unless prohibited by relevant law, the Bank will notify the Client of the reasons for the refusal and the procedure for correcting any factual mistakes that led to the refusal. The Bank may charge the Client for the notification of the refusal of a Payment Instruction as specified in the General Tariffs. The Client acknowledges that the Bank will not be liable for any loss or damage incurred or suffered by the Client or by a third person as a result of the Bank so refusing or delaying the execution of a Payment Instruction. A Payment Instruction execution of which was refused shall be considered not to have been received for the purposes of Part VI B of these General Terms and Conditions.
E. Amounts credited to the Account
1. When the Bank receives a payment transaction to be credited to the Account, the Bank shall credit the Account with the amount of that payment transaction by taking into account only the Account number (or IBAN, as appropriate) provided therein. Incorrectly provided information in this regard may result in the crediting of the amount of the payment transaction being delayed or rejected. It is the Client’s responsibility to provide payers with the correct bank code (or BIC, as appropriate) and the correct Account number (or IBAN, as appropriate). The Client further acknowledges that the Bank has no obligation to check any discrepancies between the Account numbers provided and other details that identify the Client, such as the Client’s name or registered office/address. The Bank shall not be liable to the Client for any losses incurred by the Client as a result of having received incorrect information in connection with the crediting of the amount of the payment transaction to the Account.
2. Payment transactions to be credited to the Account will be executed within the time periods specified in Part VII of these General Terms and Conditions.
3. For payment transactions to be credited to the Account, the Bank may establish a Cut-off Time as specified in Part VII of these General Terms and Conditions after which any payment transaction to be credited will be deemed to have been received on the next Bank Business Day.
4. Unless otherwise stated in Part VII of these General Terms and Conditions, if the Bank receives a payment transaction to be credited to the Account, the Bank will credit the Account with the amount of that payment transaction on the Bank Business Day on which the Bank receives the payment transaction in accordance with section 3 of this Part.
5. The Bank is authorized to deduct its charges from the amount of any payment transaction to be credited to the Account before such amount is credited to the Account. In such case, the Bank will state the full amount of the payment transaction and the charges separately in the Account statement.
F. Currency of payment transactions
1. Unless otherwise agreed, the Bank shall only execute Payment Instructions in the currencies which are specified on the Bank’s Internet Site or at the Bank’s Premises.
2. If the currency specified in a Payment Instruction or the currency of the amount which is to be debited from the Account differs from the currency of the Account to be credited, the Bank shall apply a currency conversion. Unless specific rates have been agreed between the Bank and the Client for individual transactions, exchange rates that shall be applied in this respect shall be the exchange rates based on the reference exchange rates of the Bank, stated in the Exchange Rates List of the Bank, as valid on the day and at the time of execution of the Payment Instruction.
3. In the event that the Bank receives a payment transaction to be credited to the Account stated in a currency other than the currency of the amount indicated in that payment transaction, the Bank shall execute that payment transaction by crediting to the Account the equivalent value of the amount stated in the payment transaction, converted into the currency of such Account. Unless agreed otherwise, the relevant exchange rates that shall be applied in such cases (i.e. where exchange is required between a currency designated in the payment transaction and the currency of the Account), shall be the exchange rates based on the Bank’s Exchange Rates valid on the day and at the time of receipt by the Bank of the instruction to credit a payment transaction to the Account.
4. The “Bank’s Exchange Rates” means such exchange rates determined on a daily basis, or during the day, if appropriate, depending on the exchange rates on the interbank foreign exchange market.
G. Domestic transfer
1. A “Domestic Transfer” means a transfer of funds carried out in the form of a payment in the euro currency as well as in any other currency of a Member State of the European Economic Area (hereinafter referred to as the “EEA currency”), when (i) the amount of transfer is debited from the Account and credited to the payment account of a third party beneficiary with a bank; (ii) the Transfer of Funds is in any currency when the amount of transfer is debited from the Account and credited on the payment account of the beneficiary with the Bank; and the Domestic Direct Debit.
2. A Payment Instruction for the execution of a Domestic transfer, which transfer is a transfer of funds in the euro currency and Domestic Direct Debits (with respect to any other EEA currency, the date applicable to Cross-border Payment Instructions shall be applicable) (hereinafter referred also as the ”Domestic Payment Instruction”) must contain:
a) Bank data in the form of the Account number and bank code of the Client/payer;
b) Bank data in the form of the Account number and bank code Bank of the third party beneficiary;
c) The amount of transfer specified in numbers with two decimal places;
d) The specification of the currency. Where the currency is not specified, the transfer is considered to be a transfer in the euro currency;
e) The place and date of the issue of the Domestic Payment Instruction; and
f) The Client’s/payer’s signature, which signature shall be identical to the Signature Card stored at the Bank or any other verifying instrument or key if such was agreed upon between the Bank and the Client. This Part 6 Letter B section 2(f) shall not apply to the Domestic Direct Debit.
3. With respect to the Domestic Payment Instruction which instruction relates to a Transfers of Funds in the euro currency, and the Domestic Direct Debits (with respect to any other EEA currency, the date applicable to Cross-border Payment Instructions shall be applicable) may also contain the following additional data:
a) The Due Date of the Domestic Payment Instruction (date on which the funds shall be debited from the Account); and
b) The message to the beneficiary, which message may not exceed 3×35 characters.
H. Cross-border transfer
1. A “Cross-Border Transfer” means a Transfer of Funds or a Direct Debit other than the Domestic transfer.
2. A specially regulated Cross-Border Transfer means a cross-border transfer of funds which satisfies all the following conditions:
a) The beneficiary’s bank is located in a member state of the European Union or a country in the European Economic Area;
b) The beneficiary’s account number is in the form of IBAN (International Bank Account Number);
c) The beneficiary’s bank identification is in BIC format;
d) The charging instruction SHA is applied; and
e) The Payment Instruction for such transfer is a standard (not urgent) Payment Instruction.
3. The following fees shall apply to Cross-Border Transfers:
(i) Where all conditions specified in section 2 of this Part are fulfilled, the Bank shall apply the execution of payment services charges applicable to Domestic transfers in accordance with the General Tariffs;
(ii) Where only conditions c) and/or d) of section 2 are not fulfilled, the Bank may charge an additional fee in accordance with the terms of the General Tariffs in addition to the fees applicable to the execution of payment services charges applicable to Domestic transfers in accordance with the General Tariffs; or
(iii) Where any other condition(s) besides conditions c) and/or d) of section 2 are not fulfilled, the Bank shall apply the execution of payment services charges applicable to Cross-border transfers in accordance with the General Tariffs.
4. The Payment Instruction for the execution of a Cross-Border Transfer (hereinafter referred also as the ”Cross- Border Payment Instruction”) must contain:
a) Data of the Client/payer in the form of the (i) name; (ii) registered office/address of the payer; and (iii) the Account number of the payer (may be in IBAN form),
b) Bank data of the beneficiary in the form of the (i) name ; (ii) registered office/address of the beneficiary; (iii) the Account number of the beneficiary (preferably in IBAN form if applicable for beneficiary’s country) including the currency of the beneficiary’s account (for transfers to persons holding an account in a European Union member state or persons holding an account in a European Economic Area members state, the Account number of the beneficiary must be stated in IBAN structure); (iv) the registered office/address of the beneficiary; (v) the country code; and (vi) the country of the beneficiary;
c) The amount of the cross-border transfer and currency specification;
d) Data enabling the identification of the executing institution of the beneficiary in the form of (i) the swift address of the bank of the beneficiary (BIC); and (ii) the name of the bank of the beneficiary;
e) The place and date of the issue of the Cross-Border Payment Instruction;
f) The Client’s/payer’s signature, which signature shall be identical with the Signature Card stored at the Bank or identical to any other verifying instrument or key where such was agreed upon between the Bank and the Client; and
g) The specification of charges instruction (SHA/OUR);
5. The Cross-border Payment Instruction may also contain the following additional data:
a) The Due date of the Cross-border Payment Instruction;
b) The identification data of the transfer for the Client/payer;
c) The purpose of the transfer for reasons of informing the beneficiary of such purpose; and/or
d) The Shared Cost (SHA) which means that the Client shall pay the costs of the Bank and the beneficiary shall pay the costs of its bank.
6. The only valid charging instruction for a SEPA Payment Order for a Direct Debit is SHA.
7. The Client acknowledges and agrees that the Bank may, in its sole discretion and without giving the Client prior notification thereof, change the charging instruction selected by the Client to SHA and execute the Payment Instruction accordingly, where:
a) The Payment Instruction is given in the currency of a Member State of the European Economic Area;
b) The account of the beneficiary as indicated in the Payment Instruction is held at a branch of a bank or institution which is located in a Member State of the European Economic Area; and
c) The Client has selected a charging instruction other than SHA in the Payment Instruction or has not selected a charging instruction. Upon a special request of the Client, the Bank may execute a Payment Instruction which satisfies the conditions applicable to the SHA charging instruction in accordance with section 1 of this Part above with the OUR charging.
8. The information which must be contained in the SEPA Payment Order for a Direct Debit is specified in the SEPA Direct Debit Rules.
9. By executing a Cross-Border Transfer the Bank has the right to request from the Client all information and documents necessary for the execution of such transfer pursuant to any applicable laws and regulations in Malta or upon the decision of the Bank. The Bank may refuse to execute a Payment instruction if the Client has not submitted to the Bank the required documents in a form acceptable to the Bank within the time period requested by the Bank. Where the required information or documents are received by the Bank within the time period so required by the Bank, the Payment Instruction for cross- border transfer shall be executed by the Bank provided that the Bank reserves the right to change the time periods specified in Part VII. of these General Terms and Conditions for execution of such Payment Instruction.
I. Processing fees for cross-border transfer
1. With respect to Cross-border Payment Instructions the Client may, where appropriate, select the charging instruction to be used for such Payment Instruction. The following charging instructions relating to the apportionment of costs on the execution of a Payment Instruction may be selected by the Client, where applicable:
a) Our Cost (OUR) meaning that the Client pays the costs of the Bank and the costs of the bank of the beneficiary; or
b) Shared Cost (SHA) meaning that the Client pays the costs of the Bank and the beneficiary pays costs of its bank. The Bank is authorized to charge a fee for the application of the OUR charging instruction for such Payment Instruction in accordance with the General Tariffs.
J. Refunds of Direct Debits
1. The Client is entitled to a refund of an authorized Domestic Direct Debit which the Bank under a Domestic Payment Order for a Direct Debit has already executed, if the following conditions are satisfied:
a) The authorization did not specify the exact amount of the Domestic Direct Debit when the Direct Debit was executed; and
b) The amount of the Direct Debit exceeded the amount the Client could reasonably have expected to debit taking into account its history of spending pattern and any other relevant circumstances which may be applicable.
2. The Client may request a refund of an authorized Domestic Direct Debit specified in section 1 of this Part above within eight (8) weeks from the date on which the funds were debited from the Account. A request for a refund of a Domestic Direct Debit may be made in writing or in any other form agreed upon between the Client and the Bank. Together with such a request for a refund, the Client shall provide factual elements relating to the conditions specified in section 1 of this Part above.
3. The Client is not entitled to the refund specified in section 1 of this Part if the reason for the request for the refund, for the purposes of section 1 (b) of this Part, was related to a currency exchange executed by the Bank in accordance with these General Terms and Conditions.
4. The Client is not entitled to a refund of the funds of the Domestic Payment Orders for a Direct Debit as specified in section 1 of this Part, where the Bank has informed the Client about the future Direct Debit four (4) weeks before the date on which the funds have been debited from the Account.
5. The Client is entitled to a refund of funds in case of an authorized SEPA Direct Debit which has already been executed by the Bank under a SEPA Payment Order for a Direct Debit provided that, the Client shall not be entitled to a refund in the case of an authorized SEPA Direct Debit for which a Consent to a Direct Debit was given to the Bank and where the Bank has informed the Client about the future payment operation minimum four (4) weeks prior to the date of the debiting of the funds transferred from the Account. The foregoing applies irrespective of any different regulations in the SEPA Rules.
6. The Client may request a refund of an authorized SEPA Direct Debit specified in section 5 of this Part eight (8) weeks from the date on which the funds have been debited from the Account. A request for a refund of a SEPA Direct Debit can be made in writing or in any other manner agreed between the Bank and the Client.
K. Request for Direct Debit
1. The Client, in its capacity as the beneficiary of a Direct Debit, may submit to the Bank an instruction to debit an amount from an Account held at the Bank or from an account held at another bank (hereinafter referred to as the “Request for a Direct Debit“).
2. Unless otherwise agreed, a Request for a Direct Debit shall be sent to the Bank electronically through the Bank’s Electronic Payment Service in accordance with the applicable Special Conditions. Receipt of a Request for a Direct Debit shall be the date of its delivery to the Bank. If the Bank receives a Request for a Direct Debit on a day other than a Bank Business Day or if such Request is received by the Bank after the relevant Cut-off Time, the Request for a Direct Debit shall be considered as received by the Bank the following Bank Business Day. The Bank may establish a Cut-off Time as specified in Part VII A. of these General Terms and Conditions after which any Request for a Direct Debit received will be deemed to have been received on the following Bank Business Day.
3. The Request for a Direct Debit must contain a due date on which the amount of the Direct Debit is to be debited from the account of the payer. Such due date shall not be earlier than the date when the Bank has received the Request for a Direct Debit. If the due date contained in the Request for a Direct Debit is a date later than the date when the Bank has received the Request for a Direct Debit the Bank shall not be liable for the non-execution or incorrect execution of the Direct Debit.
4. The Bank shall transmit the Request for a Direct Debit to the bank of the payer on the date on which the amount of the Direct Debit is to be debited from the account of the payer.
5. The Client may revoke a Request for a Direct Debit at any time, but no later than the date on which the amount of the Direct Debit is to be debited from the account of the payer and no later than the relevant Cut-Off Time and provided that the Request for a Direct Debit has not yet been transmitted to the bank of the payer in accordance with section 4 of this Part. Where a Client wishes to revoke a Request for Direct Debit at a time after the aforementioned periods in this section, such Request may only be revoked if specific agreement has been made between the Client and the Bank in this regard.
6. The Client acknowledges that it is the Client’s responsibility to provide the correct Account number (or IBAN, as appropriate) of the Account to be credited in the Request for a Direct Debit, and that the Bank has no obligation to check any discrepancies between the Account number provided and any other details that identify the Client.
7. The Bank may refuse a Request for a Direct Debit where such Request does not comply with the requirements set forth herein or is in breach of these General Terms and Conditions.
8. The Bank shall provide the services specified in this Part only for domestic transfers in euro.
L. Unauthorized, non-executed or defective executed payment transactions
1. The Client must notify the Bank without undue delay on becoming aware of any unauthorized credit or debit entries or on becoming aware of any incorrectly executed payment transactions. Such a notification must be made within thirteen (13) months from the credit or debit date of the alleged unauthorized entry or incorrectly executed payment transaction.
2. Where the Bank concludes that an unauthorized payment transaction has been made, the Bank shall refund the Client the amount of the unauthorized transaction without undue delay. Where applicable, the Bank shall restore the Account to the state in which it would have been had the unauthorized transaction not taken place.
3. Without prejudice to the Client’s obligation to provide the correct account information and further, without prejudice to section 1 of this Part above, the Bank shall be liable to the Client for the correct execution of a Payment Order, unless it can prove to the Client and, where relevant, to the beneficiary’s bank, that the beneficiary’s bank received the amount of the payment transaction within the time periods specified in Part VII of these General Terms and Conditions. With respect to payment transactions to be credited to the Account, the Bank is liable to the Client for the correct execution of such payment transactions if it has received the funds for the benefit of the Client within the execution time periods of the payer’s bank but has failed to credit the amount to the Account within the periods in Part VII. of these General Terms and Conditions.
4. Where the Bank is liable for non-execution or defective execution of the payment transaction in terms of section 3 above, it shall refund the Client the amount of the non-executed or defective executed payment transaction without undue delay and, where applicable, restore the debited Account to the state it in which it would have been had the defective executed payment transaction not taken place. For the avoidance of doubt, the Client shall not be entitled to a refund where the Bank has not debited the Account.
5. After the Client has notified the Bank in accordance with section 1 of this Part the Bank shall, upon request of the Client and irrespective of its liability under this Part, make immediate efforts to trace the payment transaction and, to the extent permitted by law, shall notify the Client of the outcome of its investigations.
6. The Bank shall be liable to the Client for direct losses and damages only. Direct losses and damages shall mean the costs, fees, charges and interests incurred by the Client as a result of the non-execution or defective execution of the payment transaction.
7. The Bank’s records, in the absence of manifest error, constitute conclusive evidence in determining whether the transfer was authenticated or whether consent was given for execution of transfer and whether the transfer was properly accounted or whether any technical defect or any other fault affected the execution of transfer.
8. In domestic Transfers of Funds, the Bank may execute correct accounting if the Bank or any other bank caused the erroneous execution of transfer of funds which resulted in the unjustified enrichment of the Client. Correct accounting means correction of any erroneously executed transfer of funds by debiting or crediting the Account.
9. The Client shall submit to the Bank all documents and information required by the Bank which are necessary for the Bank to ascertain whether the Transfer of Funds or Direct Debit was unauthorized, not executed or erroneously executed.
M. Cash deposits and withdrawals
1. The Bank may take cash deposits and provide the service of cash withdrawals. In rendering this Service, the Bank will charge a fee as set out in the General Tariffs.
N. Information on payment services
1. The Bank shall provide the Client with additional copies of these General Terms and Conditions (and any other terms applicable to the payment services) on paper or on another durable medium at the request of the Client to whom the Bank provides payment services. The Client may request this information by post, by fax, by email or through telephone to contacts specified in the relevant agreement, or to contacts specified in the Appendix of the General Terms and Conditions or to such other contacts as may from time to time be notified by the parties in writing to each other.
2. Prior to the initiation of a payment transaction, the Client may contact the Bank by any of the means specified in section 1 of this Part above to request information with regard to the any time periods applicable for the execution of transactions by the Bank and the charges for a specific payment transaction.
O. Spending limits
In the event that a spending limit applies to payment transaction executed through a payment instrument, the relevant Special Conditions shall stipulate such limit.
VII. TIME LIMITS FOR PROCESSING OF DOMESTIC AND CROSS-BORDER TRANSFERS

Currency CodeEarliest Value DateCut-Off Time (CET)

AEDD + 23.00 pm.

AUDD + 21.00 pm.

CADD + 11.00 pm.

CHFD + 11.00 pm.

CNYD + 210.00 am.

EURD + 11.00 pm.

GBPD + 11.00 pm.

JPYD + 21.00 pm.

TRYD + 112.00 pm.

USDD + 13.00 pm.

VIII. OTHER BANKING TRANSACTIONS
A. General provisions
1. The Bank may conclude with the Client term deposits and/or foreign exchange spot transactions in accordance with the Agreement on Term Deposits and FX Spot Transactions unless agreed otherwise between the Bank and the Client.
2. For the purposes of these General Terms and Conditions:
a) “Client’s Account Opened With Another Bank” means any Client´s current account designated by the Client and opened with any other bank;
b) “Deposit Period” means the period from and inclusive of the Start Date until the Maturity Date, of which the latter date is excluded from the computation of the period, during which the Bank may utilize the Deposit and shall pay interest to the Client on the Deposit;
c) “Deposit” or “Terms Deposit” means the provision of funds by the Client to the Bank for a certain period of time and bearing interest thereon at the agreed interest rate;
d) “Deposit Set-up Date” means the date when the Bank and the Client agree on the Deposit Terms;
e) “Deposit Terms” mean the Deposit amount and the Deposit currency, the Start Date, the Maturity Date and the interest rate p.a.;
f) “Early Termination Date” means the date of termination of the Deposit before the Maturity Date based on the mutual agreement between the Client and the Bank;
g) “Foreign Exchange Spot Transaction” or “FX Spot Transaction” means the purchase or sale of a certain amount of one currency for another currency at the agreed foreign exchange rate;
h) “FX Spot Transaction Terms” means the currency and the amount of the Client’s performance, the currency and the amount of the Bank’s performance, the foreign exchange rate of one currency to another currency, the Settlement Date of FX Spot Transaction, and further conditions as the Bank may require at its sole discretion;
i) “Identification Data” means the business name of the Client;
j) “Maturity Date” means the date agreed between the Client and the Bank as the maturity date of an individual Deposit;
k) “Quotation” – means a binding offer of an interest rate p.a. for an individual Deposit for the Deposit Period, as determined by the Bank from time to time, for which the Bank shall pay interest on the Deposit after the offer has been accepted by the Client and shall include the binding foreign exchange rate for an individual FX Spot Transaction, as determined by the Bank, for which the Bank shall exchange one currency for another after the offer has been accepted by the Client;
l) “Start Date” means the date agreed between the Client and the Bank for the Deposit as the start date of an individual deposit;
m) “Settlement Date of FX Spot Transaction” means the second (2nd) Bank Business Day following the date of FX Spot Transaction (D+2) or a Bank Business Day following the date of FX Spot Transaction (D+1) or a date of FX Spot Transaction (D+0); and
n) “Settlement Account” means the Account or the Client’s account with another bank on which the FX Spot Transaction is settled;
3. The Term Deposit and the FX Spot Transaction is further in this Part VIII also referred to as “the Transaction”. The Client shall determine the Account or the Client’s Account Opened With Another Bank. Unless the Bank and the Client agree otherwise, the Client shall determine, for the purposes of setting up and settlement of the Deposit, the Account or the Client’s Account Opened With Another Bank, no later than the Deposit Set-up Date or with respect the Settlement Account, no later than on the date of conclusion of the FX Spot Transaction.
4. Unless the Bank and the Client agree otherwise, any transaction according to this Part VIII may only be concluded by telephone or through the electronic banking system.
5. In order to conclude the transaction, the Client shall request the Bank to provide the Quotation related to the Deposit currency, the Deposit amount, and the Deposit Period, or related to the purchase or sale of certain amount of one currency for another one. The Client shall immediately accept or refuse the Quotation. Should the Client accept the Quotation, the Bank and the Client shall agree on the other Deposit Terms or on the FX Spot Transaction Terms.
6. An agreement between the Client and the Bank by telephone on the Deposit Terms or on the FX Spot Transaction Terms shall be an agreement on conclusion of the Transaction and shall be binding on the Bank and the Client.
7. On the next Bank Business Day following the date of closing the Transaction, the Bank shall send the Client a confirmation of the setting up of the Deposit or on conclusion of the FX Spot Transaction, in the form of output from the Bank’s IT system and without Bank’s signature (for the purposes of this Part VIII., hereinafter referred to as the “Confirmation”). The Confirmation will be issued in the English language. The Confirmation will contain the Deposit Terms or the FX Spot Transaction Terms. The Confirmation serves solely for (a) record purposes and as evidence document, and for (b) the purpose of checking whether the bookings are correct.
8. For the avoidance of doubt, the Bank and the Client acknowledge that the signing of the Confirmation is not a condition for validity and effect of the Transaction. If the Confirmation is not signed or accepted for any reason whatsoever, the agreement on the Transaction concluded by telephone or through the electronic banking system shall remain fully valid and effective.
9. The Client shall a) sign the Confirmation, without delay, upon having received it by an authorized person and shall send it back to the Bank, or b) in the event of any discrepancies between the Confirmation data and the agreement on the transaction, the Client shall correct the Confirmation and shall sign, without undue delay, the corrected Confirmation by the authorized person and shall send it back to the Bank. The Bank is not required to verify the validity of the authorization of the person who signed the Confirmation to act on behalf of the Client or inquire into or verify the authenticity of the signature in the Confirmation when compared with the signature on any Signature Card or authorization furnished to the Bank. The Bank and the Client shall immediately start discussions on the Client’s reservations with the aim to settle any discrepancies which may have arisen, while any recordings of telephone conversations related to the transaction may be used. If the Client fails to send the Confirmation back to the Bank at the latest by 2.00 p.m. on the following Bank Business Day after having received it, there shall be deemed to have been no discrepancy between the Confirmation data and the agreement on the Transaction.
10. No Signature Card for signing the Confirmation shall be issued.
11. By executing the agreement the Client agrees that the Bank may record all telephone calls relating to the transfer or transaction instructions and related verifications, setting up of the Term Deposits, conclusion and settlement of the FX Spot Transactions and all other account related instructions of communications. The records shall be used exclusively as evidence in case of any dispute related to the transactions and/or for the purposes set forth in the special regulations. A recording of a telephone conversation is considered acceptable and, to the extent permitted by law, shall be regarded and used as material evidence of the substance of the recorded discussions or concluded transactions.
B. Term Deposits
1. The Bank shall set up the Term Deposit for the Client upon the telephone agreement between the Client and the Bank on the Deposit Terms. The minimum Deposit Period shall be one (1) day.
2. The Bank shall pay interest on the Term Deposit at the agreed interest rate, and shall compute the interest from the Start Date. The Client shall not be entitled to any interest on the Maturity Date or the Early Termination Date.
3. If the agreed account is the Account, the Bank shall debit the Deposit amount from the Account on the Start Date. If the agreed account is the Client’s Account Opened With Another Bank, the Client shall remit the Deposit amount to the Bank in the same way that the Deposit amount is credited on the Bank’s account on the Start Date.
4. In the event the Deposit amount is not on the Account on the Start Date, or if the Client fails to transfer the Deposit amount to the Bank and, as a result, the Deposit amount is not credited to the Bank’s account on the Start Date, the Term Deposit is automatically terminated.
5. The Client may request the Bank to terminate the Deposit and dispose with the Term Deposit or any part thereof prior to the Maturity Date only upon agreement with the Bank. If the Bank agrees to such prior termination of the Deposit, the Bank shall (i) credit the Deposit amount and the interest yields shall be reduced by any costs, which may be incurred pursuant to section 6 of this Part on the Account; or (ii) shall remit it to a Client’s account with another bank on the Pre-termination Date.
6. If the Deposit is terminated early or the Term Deposit is terminated, the Client shall pay the Bank all expenses incurred by the Bank as a result of early termination of the Deposit or as a result of termination of the Term Deposit.
7. On the Maturity Date, the Bank shall credit or transfer the relevant Deposit amount plus interest to the Account or to a Client’s account with another bank.
8. The Bank shall pay interest only upon expiry of the Deposit Period. The Bank reserves the right to tax the interest in accordance with the applicable legal regulations.
C. FX Spot Transactions
1. The Bank and the Client shall fulfil their obligations arising from the FX Spot Transaction in accordance with the agreed FX Spot Transaction Terms on the agreed Settlement Date.
2. All payment obligations under the relevant FX Spot Transaction are deemed to be satisfied by crediting the relevant payments on the relevant Settlement Accounts and the Bank’s accounts.
3. If the Settlement Account is opened with the Bank, the Bank is authorized to debit such Account on the Settlement Date or on any later date, by the amount that should be paid by the Client to the Bank under, or in connection with, the relevant FX Spot Transaction. The Client undertakes to ensure that sufficient funds are available on such Account as of the Settlement Date.
4. If the Client fails to fulfil its obligations arising from the FX Spot Transaction on the Settlement Date, the FX Spot Transaction shall be automatically terminated and, upon the Bank’s request, the Client shall pay the Bank all expenses incurred by the Bank as a result of the closing of the opposite transaction on the financial market. In the event the FX Spot Transaction is cancelled and the Bank has already fulfilled its obligation arising therefrom, the Client shall return to the Bank any consideration which it has received from the performance of the FX Spot Transaction upon cancellation of the FX Spot Transaction without undue delay.
5. The provisions of this Part VIII shall be without prejudice to the Bank’s right to charge fees to the Client for clearing payments and for other banking services according to the applicable General Tariffs, and to withhold taxes or fees in accordance with applicable law.
IX. LENDING
A. General Provisions
1. Lending is subject to the Bank’s current lending assessment criteria, interest rates and contract terms. Early repayment penalties may apply.
2. The interest rate shall be set out in terms of the loan contract as entered into between the Bank and the Client.
B. Foreign Exchange Margin Transactions on Borrowed Funds
1. The Client acknowledges, recognizes and understands that trading and investments in leveraged as well as non-leveraged and margin Contracts are highly speculative and may involve an extreme degree of risk. The client further acknowledges and agrees that these trades are only appropriate for persons who can assume risk of loss in excess of their margin deposits.
2. The Client acknowledges, recognizes and understands that because of the low margin normally required in margin trades, price changes in the underlying asset may result in significant losses, which may substantially exceed the Client’s investment and margin deposits.
3. The Client warrants that the Client is willing and able, financially and otherwise, to assume the risk of trading in speculative investments and foreign currency positions including but not limited to FX margin trades, Equity margin trades, and hedge funds, with any or no collateralized margin.
4. The Client is aware of the fact that unless it is otherwise specifically agreed, the Bank shall not conduct any continuous monitoring of the transactions already placed by the Client. Hence, the Bank cannot be held responsible for direct or indirect damages or losses arising from market and interest rate fluctuations.
5. The Client is advised that the Bank shall have the right, in addition to any other rights it may have under its General Terms and Conditions and the General Tariffs, to close and/or limit the size of the Client’s open positions (net or gross) and to refuse orders to establish new positions. The Bank will inform the Client as soon as possible regarding such refused orders and the reason for the refusals. Situations where the Bank may exercise such right include, but are not limited to, where:
– The Bank has reason to believe that the Client may be in possession of Inside Information; or
– The Bank considers that there are abnormal trading conditions; or
– The value of the Client’s securities fall below the minimum margin requirement as defined in the Bank’s Commissions, Charges & Margin Schedule; or
– The Client falls under enhanced due diligence monitoring for Compliance and/or AML reasons; or
– The Client refuses to conform with the General Terms and Conditions of the Bank.
6. Margin Foreign Exchange Trade: Margin Trade shall mean a Contract opened and maintained based on a margin deposit as opposed to a Contract based on a purchase price. Since the term of Margin Trades are on a daily basis and renewable on a daily basis, Margin trade Positions can be liquidated and/or closed at any time at the sole discretion of the bank. The bank is indemnified against any and all claims arising from direct or indirect damages or losses resulting from such closure and/or execution. Such liquidation or closure of all or any part of the foreign exchange does not require client instruction and shall be initiated and executed by the bank at any time upon its own discretion. Upon such closure the bank shall charge the relevant interests and fees as published in the account opening forms and latest terms and conditions, including the general tariffs and the relevant published indicative FX rates as applicable. For foreign exchange positions and trades, the exchange rates quoted published by the Bank on www.pilatusbank.com or quoted by the Bank staff for non-execution purposes are merely indicative rates and intended for information purposes only. The actual exchange rates which will be applied by the Bank to any transaction may differ from the rates quoted on www.pilatusbank.com or by the Bank staff for non-executions purposes and may change from time to time. Current exchange rates are available from the Headquarter of the Bank. Rates are not updated on Saturdays, Sundays and Public Holidays.
7. Best execution of foreign exchange positions: to buy or sell any foreign exchange position or trade, on margin or without margin, the Bank reserves the right to execute the transaction and/or trade within a range of plus or minus three and a half percentage points (+/- 3.5%) of the published Bloomberg spot rates, http://www.bloomberg.com/markets/currencies, based on the relevant ask or bid rates of any combination of the following currency pairs: EUR, USD, GBP, CHF, CAD, AUD, and YEN. For all other currency pairs the bank reserves the right to execute the transaction and or trade within a range of plus or minus five percentage points (+/- 5%) of the published Bloomberg spot rates on http://www.bloomberg.com/markets/currencies. The Client shall take all the relevant risks into consideration including the fees and commissions upon entering into any position or closing of such position in the relevant foreign exchange before his/her execution order or instruction.
8. The indicative rates published by the Bank on www.pilatusbank.com or quoted by the Bank staff for non-execution purposes are only indicative rates and shall not be compared against the best execution policy of the Bank for the execution of the Client’s instruction to buy or sell an FX position of any kind, or the Bank’s initiative to close an FX position per its discretion and in accordance with the General Terms and Conditions and other relevant documents of the Bank, including but not limited to the Account Opening Forms.
9. Coverage ratio: the coverage ratio shall be 8% of the initial borrowed amount after any negative balances or unrealized losses and all fees and interests due to the bank are deducted. i.e. If the initial position taken by the Client is $1,300,000 by selling €1,000,000 borrowed funds of the Bank, and the current value of the position is €900,000; resulting in a €100,000 unrealized loss; therefore, the Bank shall maintain a €80,000 margin amount after the deduction of €100,000 unrealized loss. As a result, the Bank shall have a coverage or a viable collateral in the amount of €180,000 (€80,000 + €100,000) plus any relevant fees and commission. If the Client doesn’t have the sufficient funds or collaterals to fulfill his margin requirements within 48 hours of receiving a margin call in writing or in verbal from the Bank’s staff members, the Bank may take the initiative and action to liquidate parts or all of the position(s) at its sole discretion. The Bank shall be indemnified from any claims arising from such failure by the Client to meet the margin call requirements.
X. THE BANK’S RIGHT TO SET-OFF
A. Set-Off
1. The Bank and the Client hereby agree that the Bank may, at any time and in its absolute discretion, set-off any claims (whether or not such claims are due, conditional or future,) irrespective of: (i) whether the Bank lodged a request related to the claims requesting the Client to satisfy any claims that the Bank has or may have against the Client; and (ii) the place of performance, or the currency of the claims that the Client has or may have against the Bank including any claims from any deposits of the Client irrespective of whether such claims are due, conditional or future. The Bank has the right to use the Client’s financial means including the funds on any Account and/or deposit account or deposits to set-off the claims of the Client against its claims irrespective of whether such claims arise in connection with the Account or deposit account maintenance or setting up of the deposits from the same legal relationship or the currency in which such claims are denominated. The Bank shall set-off its claims denominated in a foreign currency at the exchange rates based on the Bank’s Rates valid on the day and at the time of set-off.
2. The Bank reserves the right to debit from any Account including deposit accounts and deposits, the sums of promissory notes, cheques or similar instruments previously credited to the Account or discounted by the Bank, if such were not paid. Until such time as the outstanding debit balance of the Account remains unpaid, the Bank shall retain a claim to the payment of the total amount due on the instrument in addition to the reservation of the right to claim against any person liable under the instrument, whether such claims arise under the instrument or for any other cause.
3. The Bank reserves the right to debit any Account including deposit account and deposits, any sum payable by the Client to the Bank, even if the credit balance on the Account is insufficient to meet its claims. If the Client is not authorized to have an overdraft limit or drawdown on the Account, any debit balance or a part thereof, which arises by debiting any Account including deposit accounts and deposits shall be as an unauthorized overdraft of the Account considered under these General Terms and Conditions which shall be immediately payable.
XI. SECURITY INTEREST
A. The Bank
1. The Bank may at any time request from the Client to provide collateral or to increase the amount or the value of the existing collateral to secure the Bank’s claim against the Client notwithstanding that the liabilities of the Client giving rise to such claim are not due or are subject to a term or condition that has not yet occurred.
2. All pledged tangible and intangible assets which are subject to a security interest will serve as collateral for any claims the Bank may have against the Client, unless the Bank and the Client agree upon another use for such collateral.
3. The Client shall take all necessary steps to secure all of its property rights and the enforceability of the Bank’s claims with respect to all collaterals. The Client shall inform the Bank without delay, of any changes in the value or marketability of the collateral.
4. Any tangible or intangible assets that directly or indirectly are in the Bank’s custody may be used as collateral for the claims of the Bank. The Bank may release any collateral that the Bank deems not necessary for the securing of its claims.
5. If the Client fails to perform its obligations when they fall or if the Client does not comply with the Bank’s request to provide collateral (or to increase the amount or the value of existing collateral), the Bank may sell any collateral or enforce its claims against that collateral, in any case to the extent permitted by law. The Bank shall inform the Client about the place and the date of the sale of collateral. The Bank may sell the collateral in any manner except by way of public or judicial auction.
B. The Client
The Client shall not establish any pledge, charge, surety ship, retention of rights, transfer or assignment with re-transfer or re-assignment (repo) in favour of third parties over its property, of whatever nature, nor shall it establish any other contract or agreement under any legislation that has a similar purpose or effect, where the Bank has existing claims against the Client, or may in the future have claims against the Client, arising from the relationship between the Client and the Bank. Provided that, the Bank may, at its sole discretion, give its consent to the establishment of any security interest over the property of the Client.
XII. LIABILITY
A. Responsibility of the Bank and force majeure
1. The Bank is liable only for direct losses and damages incurred by the Client caused by the Bank’s wilful misconduct or gross negligence on the part of the Bank in fulfilling the Bank’s obligations arising from any relevant agreement. The Bank shall not be liable for loss of profit and indirect losses or damages which include, but are not limited to, consequential loss, loss of business opportunity, loss of anticipated savings, loss of goodwill and reputational losses or damages, unless such losses and damages are attributable to the gross negligence of the Bank or the Bank’s wilful misconduct. In particular, and without prejudice to the generality of the foregoing, the Bank nor any of its directors, officers, agents or employees shall not be held liable for any loss or damage which arises from the closing or refusing to open an Account, or for the termination of or refusal to provide any Service.
2. Notwithstanding the provisions of section 1 of this Part, the Bank shall not be liable for its failure to perform any obligation or the failure to discharge any duty if such failure results from any cause beyond the Bank’s control, including without limitation, any breakdown or failure of transmission or communication facilities, postal or other strikes or similar industrial action, acts of domestic or foreign administrative or civil authorities, acts of military authorities, war or acts of terrorism.
B. Exclusion of the responsibility
The Bank shall be entitled to use the services of third parties for the execution of orders including Payment Instructions of the Client or when performing other agreements, of whatever nature, entered into with the Client. The Bank may also deposit goods, securities and documents to which the Client has legal title with such third parties. The Bank shall not be liable for damage incurred by the Client due to any acts or omissions or insolvency of any third party where if the Bank has exercised reasonable care when selecting such third parties. Notwithstanding the foregoing, the Bank shall assist the Client as much as possible in reducing or claiming any damage suffered by the Client. For the avoidance of doubt, the foregoing does not purport to impose an obligation on the Bank to represent the Client, or appear as a witness of the Client, before a court of law.
C. Indemnification
Immediately upon the Bank’s notice to that effect, the Client will indemnify the Bank in respect of any damage (whether direct or indirect) incurred by the Bank as the result of: (i) the Client’s failure to fulfil any of its obligations under these General Terms and Conditions or under any other agreement concluded with the Bank (including in those cases where the Bank has executed orders or other instructions for the Client and the Bank reasonably believes that such orders or other instructions were either approved by the Client or given on behalf of the Client); or (ii) as the result of untruthfulness or incorrectness of any of the representations made by the Client under these General Terms and Conditions or the agreement concluded with the Bank.
XIII. INTERNET BANKING
1. Access to and use of online banking is only permitted via the Bank’s dedicated website.
2. The provision of online Accounts by the Bank to its Clients (hereinafter referred to as “Internet Banking Services”) may be modified, suspended due to technical problems/ faults, maintenance or security and/or terminated in whole or in part. Whenever possible, the Bank will use reasonable efforts to inform the Client, through the Internet Banking Services and/or the Bank’s Internet Site, if any Service under the Internet Banking Service is not available. The Bank may, however, suspend any Service provided to the Client under the Internet Banking Services without notice where the Bank considers it necessary or advisable to do so.
3. The Bank may, from time to time, suspend some or all of the Internet Banking Services for routine, non-routine or emergency maintenance where it considers it necessary to do so. In such an event, the Bank will insofar as is possible, provide the Client with a reasonable period of notice prior to the suspension by means of a notification on the Bank’s Internet Site.
4. The Client has access to the following Account(s) using the Internet Banking Services: (i) all Accounts of which he/she is (co-)holder; and (ii) all Accounts for which he/she is authorized.
5. The Client agrees to comply with the instructions, recommendations and information for the use of the E-Signature Device provided by the Bank whether by means of a notice or on the Bank’s Internet Site. (The term “E-Signature Device” refers to any device designated by the Bank for use by each Client to generate a security code for access of an online Account. An E-Signature Device may be in the form of a token and includes any PIN (personal identification number), password and/or security question to be used in conjunction with the E-Signature Device.)
6. Setting up, maintaining and regularly reviewing security arrangements concerning access to, and use of, the Internet Banking Services, and information stored on the Client’s computing and communications systems, is the sole responsibility of the Client.
7. The Client hereby confirms that he/she has assessed the security features of the Internet Banking Services and has determined that these are adequate to protect his/her interests.
8. It is the sole responsibility of the Client to keep his/her E-Signature Device secure and secret at all times, and take steps to prevent unauthorized use thereof.
9. Once the Client has logged on to internet banking , the Client must not, at any time, leave the internet terminal from which he has accessed the Account(s) before logging off or permit another person to use the internet terminal before logging off.
10. The Client is prohibited from accessing his/her Account(s) from any computer connected to a LAN (local area network) or any public internet access device or access point prior to ensuring that the computer and network are free of viruses, spyware, destructive or disruptive component, malicious code or any other software or component which will or may compromise either the Bank’s or the Client’s access to and/or use of the Bank’s Internet Site and the Bank’s Internet Banking Services.
11. The Client must notify the Bank immediately of the following: (i) any unauthorized access to the Bank’s Internet Site and/or the Internet Banking Services; and/or (ii) unauthorized access to the E-Signature Device. In the event of any such breach or suspected breach, the Client is required to change his/her security details immediately to one which he/she has not used before. The Client shall also immediately comply with all reasonable requests from the Bank and/or the competent law enforcement agencies in this respect. The Bank is also authorized to disclose information about the Client, without further notice to the Client, to the competent law enforcement agencies or other third parties where the Bank believes it will prevent or recover losses.
12. The Client is solely responsible for the performance and protection of any browser used in connection with access to the Bank’s Internet Banking Services.
13. The Client is bound by the instructions, terms of use, consents, disclaimers, statements and other provisions of any nature of the Bank or its third-party service providers as expressly stipulated or referred to on the Bank’s Internet Site in relation to the Bank’s Internet Banking Services. In particular, the Client agrees with the terms of use of the information provided on the Bank’s Internet Site or its third party service providers.
14. The Client shall indemnify the Bank against all actions, proceedings, costs, loss and damage of any kind which the Bank may suffer as a result of the Bank, or any representative of the Bank, acting on any Client instruction or as a result of any failure on the Client’s part, to comply with the duties stipulated under this Part.
15. The Bank shall levy charges in accordance with the General Tariffs.
XIV. FEES, COSTS AND EXPENSES
1. Unless otherwise agreed with the Client, fees, commissions, charges, expenses and interest rates for transactions, including payment services provided by the Bank to the Client shall be as set out in the General Tariffs or in the specific tariffs for bank services issued by the Bank or as stated in the applicable laws or regulations.
2. The Client shall pay such fees, commissions, charges and expenses without delay after the execution of the transaction unless as otherwise agreed or as otherwise stipulated in the relevant tariffs. Where the Bank, in its sole discretion, deems it reasonable, the Bank may opt not to charge any applicable fees.
3. The Client agrees that the Bank has the right to replace or amend the General Tariffs or the specific tariffs and/or change fees, commissions, charges and/or expenses set forth in the General Tariffs or in the specific tariffs. The replaced or amended General Tariffs or the specific tariffs and the date on which the amended General Tariffs and/or the specific tariffs will be valid, will be made available at the Bank’s Premises or published on the Bank’s Internet Site.
4. In connection with payment services, the Bank may charge for additional or more frequent provision of information or for information transmitted by means of communication other than the norm, in accordance with the General Tariffs.
5. The Bank and the Client shall bear their own costs and expenses incurred in connection with mutual transactions and/or business relationships except with respect to the circumstances stipulated herein, in the applicable laws or where so agreed by the Bank and the Client. The Client shall reimburse the Bank for all costs and expenses incurred by the Bank (including costs and expenses for legal counsel) in connection with the institution of any action taken by the Bank in relation to Client transactions or other Client’s duties or obligations, whether such proceedings are judicial or arbitration proceedings or any other contentious proceedings.
6. In connection with retained mail services, the Bank shall charge the Client a fee for such service where the Client indicates the desire for such services. Moreover, the Bank shall not deliver any bank statements to the address(es) indicated by the Client.
7. The Client hereby irrevocably authorizes the Bank to debit any Account with all fees, commissions, charges and expenses as and when they fall due or at any time after that date. Fees, commissions, charges and expenses shall be automatically debited from the Account on their due date, and shall be subject to unauthorized overdraft interest if not paid immediately.
XV. TERMINATION OF AGREEMENT
1. Unless otherwise agreed or set forth herein, the Client and the Bank may at their own discretion respectively terminate this agreement and any transaction resulting therefrom or the entire relationship between them at any time with immediate effect for any reason or for no reason whatsoever. Such termination is subject to the written notice, to the other party.
2. Unless otherwise agreed, the Client may terminate the agreement under which the Account was opened after giving one (1) month prior written notice, which notice period will commence on the date of delivery of the notice to the Bank.
3. Unless agreed otherwise, the Bank may terminate the agreement under which the Account was opened after giving two (2) months prior written notice, which notice period will commence on the date of delivery of the notice to the Client. Notwithstanding the aforesaid, the Bank reserves the right to terminate the agreement under which the Account was opened by giving the Client a shorter written notice, which notice period will commence on the date of delivery of the notice of the Client.
4. Notwithstanding the provisions of section 3 and what may have been agreed between the Client and the Bank, the Bank may terminate the agreement with the Client immediately where:
a) The Client breaches the Agreement or the General Terms and Conditions or Special Conditions and such breach is of a grave or serious nature;
b) The Client deceives the Bank through misrepresentations, false statements, failure to submit data or other, omits any information, of whatever nature, or fails to carry out a specific act, which acts or omissions have influenced the Bank’s decision to enter into the Agreement with the Client;
c) The Client is unable to satisfactorily provide the Bank with evidence of the lawful origin of funds used by the Client for making transactions with the Bank;
d) The Client uses or has used the Bank’s services or transactions for activities or purposes which contravene any applicable laws or regulations or which may be damaging to the reputation of the Bank or the integrity of the financial system; or
e) In such cases where the applicable laws or regulations allow or require the Bank to terminate the business relationship with the Client with immediate effect.
5. The termination of the Agreement or business relationship between the Client and the Bank shall in no way affect any obligations which existed at the time of the termination and accordingly the termination shall not have retroactive effect. In the event that the Client terminates the Agreement, the Client shall repay any monies owed to the Bank or any of its correspondents or agents, including, without limitation, the amount of any unpaid fees, commissions, charges, expenses, accrued interest and any authorized as well as unauthorized debit balances on the Account and other costs at the date of termination of the Agreement or business relationship, all of which will become immediately due and payable upon termination of the Agreement or business relationship.
6. Upon termination of the Agreement or business relationship between the Client and the Bank, the Bank shall make available to the Client any credit balance on the Account or demand payment of any debit balance, as the case may be. After closing the Account, any credit balance on the Account shall be transferred to the Client, as the Bank may consider appropriate. The Client is obliged to reimburse the Bank for all expenditures incurred in relation to the termination. The General Terms and Conditions shall remain in force until all existing claims and obligations between the Client and the Bank are settled.
7. The Client acknowledges and agrees that fees, commissions, charges and expenses related to any product or payment service governed by these General Terms and Conditions which has been levied by the Bank and paid by the Client before closure of an Account or termination of the availability of the payment services concerned will not be reimbursed upon closure of the Account or termination of the availability of any of such payment services or products.
8. In the event that the Client terminates any payment services or products governed by these General Terms and Conditions, the Bank may levy charges for termination as specified in the General Tariffs.
9. In the event of death of Client who is a natural person, the Bank is entitled to assume that the relationship between the Bank and the Client is still in existence until the Bank is notified, in writing, that the Client has passed away. In the case of a deceased Client, the Account(s) pertaining to that Client are blocked upon the notification of the death of the Client. Subsequently, the Bank will demand that the person(s) claiming to be legally vested with the rights and obligations appertaining to the Account(s) submit a list of relevant documents certified by a local public notary in order to enable the Bank to ascertain the manner in which the funds held by the Bank in the name of the deceased Client should be allocated/ distributed. The Bank may rely on such evidence as it may require, at the Client’s expense, to establish the proper entitlement and authority of such person(s) and the Bank is not bound to act until such times as it is so satisfied. The Bank’s legal department shall vet such documentation to establish and confirm rightful ownership, and in doing so the Bank will charge an administration fee to carry out this investigation as per the Tariffs Schedule. Prior to the settlement of the estate of the deceased Client, the Bank is not obliged to provide information in relation to actions and transactions that have been carried out before the time of the death of the Client. The Bank shall take instructions from the person(s) who is (are) legally vested with the rights and obligations appertaining to the Account(s). All terms governing the Account(s) remain binding on the successor in title whom the Bank is asked to acknowledge.
10. In the event that a Client set up as a corporate entity is placed into liquidation, bankruptcy, administration or other similar condition, wherein a liquidator, curator, administrator, trustee or other similar officer is appointed and in whom legal authority and representation is vested to the exclusion of the persons nominated by the Client in any mandate to the Bank, the Bank may rely on such evidence as it may require, at the Client’s expense, to establish the proper entitlement and authority of such person(s), and the Bank is not bound to act until such time as we are so satisfied.
XVI. MISCELLANEOUS
1. The “Bank Business Day” shall mean a day other than Saturday, Sunday and a public holiday during which the Bank is opened with business hours from 9.00 a.m. to 5.00 p.m. CET each Bank Business Day. The Bank is authorized to change the opening hours at all times, particularly for operational reasons. The Bank shall notify the change of the opening hours to the Client by publishing it at the Bank’s Premises and on Bank’s Internet Site.
2. The Bank is entitled to impose charges for all Accounts and Services provided to the Client in accordance with the General Tariffs. This document may be amended from time to time. The charges set out in the General Tariffs are applicable to the Client unless the Bank and the Client have entered into a specific alternative arrangement in writing.
3. All payments made by the Client to the Bank shall be made without any counterclaim, set-off or any other conditions of any character whatsoever.
4. Any taxation or duty arising in connection with the Services provided to the Client shall be borne exclusively by the Client.
5. Unless agreed otherwise the place of payment of the obligations arising in connection with the business relationship between the Client and the Bank shall be the offices of the Bank in Malta.
6. The Client represents and undertakes that, during the entire contractual relationship between the Client and Bank:
a) The Client shall be authorized and shall the have the capacity to enter into an Agreement or any transactions with the Bank;
b) The obligations of the Client under the Agreement concluded between the Client and Bank shall be and shall remain valid, effective, and enforceable against the Client and shall not violate any legal regulations; and
c) The information provided by the Client to the Bank shall be true, accurate and complete in all material respects and shall not be misleading.
7. The Bank shall comply with legal regulations on anti-money laundering and funding of terrorism. The obligations of the Bank under such legal regulations prevail over any confidentiality obligation the Bank might otherwise owe to the Client. In fulfillment of its obligations in terms of the legal regulations on anti-money laundering, funding of terrorism, and compliance with international sanctions the Bank may, at its sole discretion, charge the Client a fee as set out in the General Tariffs. The total amount of fees payable by the Client in this respect shall be solely determined by the Bank.
8. Where the Client is an unincorporated association or a group of persons, the members of such unincorporated association or group of persons shall be liable jointly and severally for the Client’s obligations to the Bank. In the case of death, bankruptcy, winding-up or dissolution of one or more than one of such persons or association, the obligations and rights of all other persons or former members of such association in a contractual relationship with the Bank shall remain valid and effective. The foregoing is without prejudice to any other rights of the Bank with respect to such other persons or former members of such association or their respective legal successors.
9. If any of the provisions of the Agreement between the Bank and Client is or becomes invalid, ineffective or unenforceable, in full or in part, the validity, and enforceability of the remaining provisions of the Agreement between the Bank and Client shall not be affected.
10. The records kept by the Bank shall be deemed admissible and, to the fullest extent possible permitted by law, shall be conclusive evidence of the instructions or conversations recorded, or transactions concluded, between the Bank and Client. The Client may not rely on the Bank keeping such records. The Bank may, in its own discretion, decide to make its records available to the Client upon the Client’s request or dispose of such records. All records are retained and/or disposed of in accordance with applicable local legislation.
11. The Bank is a legal person and the obligation to repay financial means on the Account, deposit account or to repay any deposit (hereinafter referred to as the “financial means”) is the obligation of the Bank. Notwithstanding the foregoing, the Bank may not repay the financial means on Account due to war, uprising or civil unrest in Malta, or action or inaction of the Government of Malta or its state authorities.
12. The Bank may provide the Client with any information, including information which the Bank must provide to the Client in accordance with applicable law and regulations, by means of the Bank’s Internet Site. Where required by applicable law and regulations, the Bank shall electronically notify the Client of the address of the Bank’s Internet Site and the place on the Bank’s Internet Site where the information may be accessed. The Client also agrees to provide to the Bank its email address without undue delay and represents that it has regular access to the Internet.
13. The Bank may refuse to execute any transaction from or to: (i) a country or territory in which valid political and economic sanctions of those countries are declared, whose jurisdiction directly affects activities or business of the Bank; or (ii) to persons with residency, citizenship or permanent address in a country or territory in which valid political and economic sanctions are declared. The Bank may also refuse to perform any service, act or instruction relating to a financial instrument issued, held or registered in a country or territory in which valid political and economic sanctions or in relation to any financial instrument issued, held or owned by a person having registered office, citizenship or permanent residence in such country or in such territory.
15. The Bank shall not issue cheques. The Bank may secure the collection of a cheque for the Client only upon special agreement between the Bank and the Client. The Bank may secure collection or payment of a cheque under the sole condition, that the Bank has received the funds in the amount necessary for payment of a cheque and payment of any fees and expenses connected with payment of the cheque. Furthermore, in the event that a deposit is made by means of a cheque which cannot be cleared for any reason whatsoever, the Bank reserves the right to close the Account, debit the Account with whatever amount is due to us with respect to the returned cheque and take any other action that may be required.
16. Funds arising from cheques or similar instruments will be made available to the Client only after the appropriate clearance is obtained from the bank(s) holding the funds in question. In the case of cheques or other instruments drawn on Maltese branches of banks licensed and regulated by (i) the Malta Financial Services Authority (hereinafter referred to as the ‘MFSA’) or (ii) a reputable foreign financial services authority (hereinafter referred to as the ‘Maltese Banks’), the period of clearance required is normally three (3) Bank Business Days. In the case of cheques or other instruments drawn on bank other than Maltese Banks (hereinafter referred to as the ‘Foreign Banks’), the period of clearance required is normally fifteen (15) Bank Business Days but can take up to a period of one (1) month. The Bank shall be entitled to block any amount in any Account held by the Client with the Bank until the funds are cleared. The Bank does not accept any liability for loss or damage suffered by the Client or any third party as a consequence of any delays, unless such delays arise from the Bank’s own fraud or gross negligence.
17. Inbound and outbound calls may, without prior notice, be recorded for quality, verification and security purposes. The Bank shall retain recordings of any inbound and outbound calls for such period(s) not in excess than that stipulated in the applicable local legislation.
18. Any and all legal fees incurred by the Bank for the purpose of ensuring and/or enforcing the rectification of any default by the Client in terms of the provisions of these General Terms and Conditions, shall be borne solely by the Client without undue delay. Any fees payable by the Client shall be charged to any Related Client Account. The total amount of fees payable by the Client shall be deducted in the Euro currency or an amount equivalent in any other currency; in the latter instance, any charges applicable due to forex shall be incurred solely by the Client.
19. Any and all third party fees incurred by the Bank for the purpose of ensuring and/or enforcing the rectification of any default by the Client in terms of the provisions of these General Terms and Conditions, shall be borne solely by the Client without undue delay. Any fees payable by the Client shall be charged to any Related Client Account. The total amount of fees payable by the Client shall be deducted in the Euro currency or an amount equivalent in any other currency; in the latter instance, any charges applicable due to forex shall be incurred solely by the Client.
20. The Client shall, without undue delay, refund the Bank of any administration fees relating to the provision of special advice and/or services as per the General Tariffs. The total amount of fees payable by the Client in this respect shall be solely determined by the Bank. Any fees payable by the Client shall be charged to any Related Client Account. The total amount of fees payable by the Client shall be deducted in the Euro currency or an amount equivalent in any other currency; in the latter instance, any charges applicable due to forex shall be incurred solely by the Client.
21. The Bank reserves the right to collect any fees due to it by the Client in any applicable jurisdiction.
22. Nothing in these General Terms and Conditions shall confer any right on any third party to enforce or to benefit from any aspect of these provisions.
XVII. ELECTRONIC CONTRACTS AND COMMUNICATIONS
1. Unless otherwise stated in these General Terms and Conditions or in the Agreement, where the signature of the Client or the representative of the Bank is required, such signature may be given electronically and the provisions of the Electronic Commerce Act (Cap. 426 of the Laws of Malta) (hereinafter the “Electronic Commerce Act”) shall apply to the provision of a signature in electronic form. In particular, an electronic signature shall be deemed to have legal effect irrespective of its electronic form.
2. Unless otherwise stated in these General Terms and Conditions or in the Agreement, where a Client or the Bank is required to provide a document or notification in paper form or in any other substance or material, the provision of such document in electronic form, unless the Bank so otherwise requires, shall be deemed to have been provided and the provisions of the Electronic Commerce Act shall apply to the provision of a document in electronic form.
3. The Bank may record information, documents and communications in electronic form and the provisions of the Electronic Commerce Act shall apply to the retention of such information, documents and communications.
4. Contracts between the Bank and the Client may be concluded in electronic form and the provisions of the Electronic Commerce Act shall apply to such contracts. In particular, electronic contracts shall be deemed to have legal effect irrespective of the fact that they have been concluded, wholly or partly, electronically. Any amendments, cancellations or revocations of a contract may also be effected electronically and the electronic nature of such amendments, cancellations or revocations shall not affect their validity and legal effect.
5. Unless otherwise stated in these General Terms and Conditions, a reference to a signature, contract, notification or communication made in writing shall be deemed to include a reference to a signature, contract, notice or communication made in electronic form.
XVIII. EXCHANGE OF INFORMATION
1. Notwithstanding the provisions of Part II, and unless the Bank receives an objection in writing from the Client, the Bank may provide, supply, distribute and exchange any Confidential Information, of whatever nature, relating to inter alia personal information of the Client, transactions executed by the Client or by the Bank on behalf of the Client, and any investments or products or services held or used by the Client in the following manner and to the following persons:
(i) To the parent of the Bank and its subsidiaries and to other subsidiaries of the parent of the Bank;
(ii) To Pilatus Capital Ltd., registered in the Registrar of Companies for England and Wales‏ under registration number 6620604‏ and having its registered office at Berkeley Square House, London, W1J6BD, United Kingdom‏ (“Pilatus Capital”) and to the parent of Pilatus Capital and any or all of its subsidiaries and to other subsidiaries of the parent of Pilatus Capital.
(iii) To Perse Swiss Finance & Asset Management S.A., registered in the Commercial Register of the Canton of Zurich under federal number CH-660-2044011-7 and having its registered office at Tödistrasse 51, 8002 Zurich, Switzerland (“Perse”) and to the parent of Perse and any or all of its subsidiaries and to other subsidiaries of the parent of Perse.
XVIX. CLAIMS REGULATION
1. The Claims Regulation of the Bank (hereinafter referred to as the “Claims Regulation”) governs the procedures regarding the settlement of claims and complaints in relation to the execution of transactions including payment services. The Claims Regulation is available at the Bank’s Premises and on the Bank’s Internet Site.
2. The Bank accepts claims and complaints related to payment services at the Bank’s Premises at the address specified for delivery of claims of payments services in the Appendix of these General Terms and Conditions during business hours. Claims relating to payment services may be given to the Bank verbally, by phone or by fax, taking into account the form of the payment service provided. On delivery of a claim to the Bank, the Bank will give a confirmation to the Client.
3. The Bank has the right to amend the Claims Regulation depending on the changes of the respective legal regulations or the Bank’s business policy.
XVX. DISPUTES AND GOVERNING LAW
A. Disputes
Unless the Bank and the Client agree otherwise, all disputes between the Bank and the Client (including disputes from any non-contractual obligations) shall be submitted to the Courts in Malta which shall have sole jurisdiction to hear proceedings instituted by the Bank or the Client.
B. Governing law
The relationship between the Client and the Bank, and any non-contractual obligations between the Bank and the Client shall be governed and construed in accordance with the laws of Malta unless agreed otherwise.
APPENDIX TO THE GENERAL TERMS AND CONDITIONS
Information on the Bank for purposes of providing banking services and for regulatory purposes
Business name Pilatus Bank plc, Whitehall Mansions, Level 2, Ta’Xbiex Wharf, Ta’Xbiex, XBX1026, Malta
Company Registration No. C62995
The Bank is licensed to conduct the business of banking in terms of the Banking Act (Cap. 371 of the laws of Malta) by the MFSA of Notabile Road, BKR3000 Attard, MALTA.
Bank’s Internet Site www.pilatusbank.com or any other website to be notified to the Client for the purposes of communication with the Bank
Email Address info@pilatusbank.com
Other contact details Telephone: +356 27799999 Fax: +356 27799990