Dowgate Terms of Business

Retail and Professional Clients

/Dowgate Terms of Business
Dowgate Terms of Business2019-03-30T23:50:27+00:00

Effective as of 25 March 2019

Definitions

Agreement – As stated in 1.1
Business Day – Means a day in which the London Stock Exchange is open for business.
CASS – As defined by the FCA rules
Client Money – Money that is owned by our clients and segregated from Dowgate Capital’s own money as set out in the FCA’s CASS rules
Complex Instruments – As defined by the FCA
Custodian – the appointed firm responsible for the safekeeping of our clients assets on our behalf
Delivery Versus Payment (DVP) – Settlement procedure in which payment will be made to the seller upon delivery of the instrument to the buyer.
Eligible Counterparty – As defined by the FCA
FCA – Means the Financial Conduct Authority
Financial Instrument – As defined by the FCA
Investment Firm – As defined by the FCA
ISA – Individual Savings Account
JISA – Junior Individual Savings Account
Market – Any regulated market or multilateral trading facility
MiFID II – Markets in Financial Instruments Directive II
Non-complex Instruments – As defined by the FCA
Principal – an entity for whom the client is acting for and on behalf of in relation to the services in this Agreement
Professional Client – As defined by the FCA
Regulations – all applicable laws, rules regulations in force at the time as well as relevant Market rules
Retail Client – As defined by the FCA
Trading Venue – As defined by the FCA
Transaction – Orders in Financial Instruments which we have carried out on your behalf under this Agreement
UCITS – Undertakings for Collective Investments in Transferable Securities
“We”, “Us” and “Our” – Refers to Dowgate Capital
“You” and “Your” – Refers to persons who have signed the agreement, including any persons to whom you have given authority to deal on your behalf

1. Introduction

1.1 Together with the completed Application Form, the Conflicts of Interest Policy and the Order Execution Policy these Terms of Business (“Terms”) and any other written agreements between you and us concerning your account, constitute the agreement between you and Dowgate Capital Limited (“DC”, “us”, “we” or “our”). Collectively these documents are referred to below as the “Agreement”.

1.2 The Agreement sets out the Terms on which we will provide services to you. By signing the Application Form, you confirm that you, and/or the company or trust on whose behalf you are signing, accept these Terms and will be bound by the Agreement. These Terms replace all earlier Terms.

1.3 If you are new to DC, the Agreement will come into effect on the date that we confirm your account has been opened. If you are an existing client these Terms will come into effect on the date notified to you.

1.4 Where there is any conflict between this Agreement and any other agreement or terms of business in respect of the services we provide to you in respect of the Transactions, the terms of this Agreement will prevail

1.5 References in these Terms to information in the Application Form mean the information contained in the original Application Form or as subsequently amended and agreed in writing between you and us.

1.6 This agreement has been supplied in English and therefore English will be the language use in all our communications to you. You will also communicate with us in English.

2. Regulation

2.1 DC is authorised and regulated by the Financial Conduct Authority (“FCA”) whose address is 12 Endeavour Square, London, E20 1JN. DC’s FCA reference number is 146274.

2.2 This agreement and all services that we provide under it, as well as all Transactions are subject to applicable Regulations in order that:

  • where any conflict between the Agreement and applicable regulations occur, applicable regulations will apply
  • nothing in this Agreement shall exclude or restrict any obligation which we may have to you under applicable regulations
  • all applicable regulations and whatever we do or fail to do in order to comply with them will be binding on you
  • any actions that we take or fail to take for the purpose of compliance with any applicable regulations shall not render us or any of our directors, officers, employees or agents liable; and
  • you agree to comply with all applicable regulations

2.3 We are obligated by the FCA rules to adhere with certain rules of conduct, but assume no greater responsibility nor owe you any duty, other than imposed by the FCA Rules or the terms of this Agreement

3. Classification and Capacity

3.1 As required by the FCA rules and based on information available to us, DC will categorise you as either a Retail Client, Professional Client or an Eligible Counterparty.

We will therefore treat you as a retail client unless we agree with you otherwise. As a retail client, you may request to be re- categorised as a professional client, but as such you will no longer qualify for those protections which only apply to retail clients. We will only accept such a request if we are permitted to do so in accordance with the regulatory criteria. If you meet the criteria, you will be required to sign separate documentation confirming your understanding of becoming a professional client and the acceptance of the loss of certain protections.

3.2 The following provisions shall apply to you if you fall within the categories specified below:

  1. joint account holders shall be jointly and severally liable to us and we may discharge our obligations to make any payment or account to all such holders by making such payment or account to any one or more of them;
  2. the trustees of any trust shall be regarded as the client (as opposed to any beneficiary) and shall be jointly and severally liable to us; and all the partners of any partnership which is our client shall be jointly and severally liable to us.

3.3 Where you are acting as agent on behalf of another (whether disclosed to us or not) you will be, and at all times remain, liable to us as principal in relation to any transactions which are to be performed under these terms and we will treat you as our client under the FCA rules. You agree that you will be liable to us jointly and severally with any such underlying person in respect of all obligations and liabilities arising from instructions given to us.

4. Communication on Joint Accounts

4.1 Where you have entered into this Agreement jointly with another person or other people, we are entitled to deal with you on the basis that you are the joint holders of all the cash and investments to which these terms relate, however lodged with us or registered, and to act on instructions given by any one of you or the survivor of you.

4.2 These terms will remain in force notwithstanding the death or other incapacity of any one or all of you until we confirm in writing that we have received either;

  1. Written notice of the death or legal incapacity of one or all of you; or
  2. Written notice of termination from any one of you.

4.3 Notice issued by us will be effective in relation to each of you if served on any one of you.

4.4 Unless we are instructed otherwise, all communications that we send to you such as contract notes, statements and valuations will be sent only to the first-named client in a joint account.

5. Our Services

5.1 This Agreement relates to the execution of transactions for you in Financial Instruments including

  • Shares;
  • Debentures, debenture stock, loan stock, bonds and other instruments creating or acknowledging indebtedness;
  • Government and public securities
  • Certificates representing securities and
  • UCITS and investment trusts.

Where we execute Transactions in non-complex instruments, we are not required to obtain information from you regarding your knowledge and experience, so as to enable it to make an assessment as to the appropriateness of the instrument or service provided or offered. Please note, therefore, that you will not benefit from the protection of any conduct of business rules that could require us to assess the appropriateness of the product or service for you under Article 25 MiFID II in relation to such non-complex instruments. We may also provide other services if agreed between us and in accordance with Applicable Regulations.

5.2 Our services encompass discretionary portfolio management, advisory trading and execution only trading, details of each service are set out below:

Discretionary management

If you elect for this service, DC will manage, on a discretionary basis your portfolio of cash and investments. Subject to any instructions from you, DC will have full authority at its discretion, with prior reference to you, to execute any type of transaction or arrangement for your account. Using this discretion will be in accordance with your investment objectives as prescribed by the applicable FCA rules and in a manner that we believe to be suitable for you.

Advisory

As an advisory client, we will advise you, on entering into investments and exercising your rights in relation thereto. We seek to ensure that our advice is suitable for you. It remains your sole responsibility to inform us of any changes to your circumstances, requirements and objectives
In terms of the FCA, we may recommend to you any investments which we reasonably believe are suitable for you. All decisions on whether to invest in, hold or dispose of any investment or asset are yours and we will only enter into transactions as you instruct.

Execution only

You can be treated as an execution only client in respect of all transactions or a specific transaction and means we are only able to act on the instructions that you provide and you are responsible for the decisions that you make when you engage our execution only service.

For any service we agree to provide you, in circumstances where you have not supplied us sufficient information, either orally or in writing, about your investment objectives, financial circumstances and degree of risk you are prepared to accept or even if you have supplied us with information previously, where we may reasonably believe that you are not expecting us to advise you about a particular transaction, then we will not make any personal or product investment recommendations and we will interact with you as an execution only client, and you hereby agree to our interaction in this way.

For more complex products, such as warrants, we may require additional information from you to assess if the product is appropriate. If you choose not to provide this information and we agree to execute the transaction on your behalf, you agree and acknowledge that we cannot assess whether the investment will be suitable to your needs.

You are responsible for the investment decisions that you make when you engage our Services as an execution only client. We do not accept responsibility on a continuing basis for advising you on the composition of your portfolio.

6. Custody and Registration

6.1 DC is authorised by the FCA to control client money but not to hold client money. Therefore, Client money will be held on your behalf by our nominated Custodian in accordance with and subject to the FCA Rules. This requires them to hold your money in a segregated bank account with an approved bank. Your money could be held by the approved bank with other clients money in a pooled client account, which means client money is held as part of a pool of money, which means you will not have a claim against a specific amount, but a claim against the Client money pool in general.

6.2 Where we hold money on your behalf, you agree we may hold your money at any approved bank or pass your money to an intermediate broker, settlement agent, custodian or counterparty outside the UK. In such circumstances, the legal and regulatory regime applying to the bank, broker, agent or counterparty with which your money is held will be different from that of the UK and in the event of a default of the bank, broker, agent or counterparty your money may be treated differently from the position which would apply if the money was in the UK.

We will perform due skill, care and diligence in the selection, appointment and periodic review of any custodian or bank (other than a central bank) where your money is deposited and for the arrangements for holding your money but we shall not be responsible for any acts, omissions or default of any third-party custodian or bank.

We will usually settle transactions on a Delivery versus Payment (DVP) basis. During the DVP window, we may not treat your assets as client assets or your money as client money. In these circumstances, the following provisions for the treatment of your cash and assets will apply:

  • For a purchase on your account, the DVP window starts from the date on which you fulfil your payment obligation to us. The DVP win-dow will then close on the earlier of the date on which the DVP transaction settles or the Business Day following the date on which you fulfil your payment obligation to us. If you have fulfilled your payment obligation and delivery of the asset has not occurred by close of business on the third Business Day following fullfilment of your payment obligation, we will treat your money as client money until such time as the asset is delivered to you.
  • For a sale on your account, the DVP window starts from the date you fulfill your delivery obligation to us. The DVP window will then close on the earlier of the date on which the DVP transaction settles or the third business day following the date you fulfill your delivery obligations to us. Where payment has not occurred by close of the third business day following the date on which you complete your delivery obligation to us, we will treat your asset as a client asset until such time as we make payment to you.

You should be aware that the protections offered under FCA client money and client asset rules only apply when such money or assets are treated as client money or client assets as defined in the FCA handbook.

Any client money or client’s assets due to you which are unclaimed by you on an account which has not been active for six years (client money) or 12 years (client assets) will cease to be client money or client assets. After which we may pay or transfer client money, assets or the liquidations proceeds away to a registered charity. We will attempt to contact you at least three times should we intend to exercise these rights and we undertake to make good any valid claim that may be subsequently made against any assets we have liquidated in this way.

Where our Services involves safekeeping your assets, dealing with any cash or otherwise administering your assets or accounts, we will keep records as evidence that your assets are held on your behalf and do not belong to us. In providing this service, you authorise us, where we reasonably consider it appropriate, to employ agents and sub-custodians to perform any aspects of the custody service and authorise them to do the same. We will follow any applicable regulatory requirements. In such scenarios, we will use reasonable skill and care in selecting, using and monitoring the delegate but are not liable for their acts or omissions, insolvency or dissolution.

Your assets will be registered in the name of a nominee or a sub-custodian where:

  • It is possible; and
  • We consider it appropriate; and
  • Regulatory requirements allow it.

Registration in the name of a nominee or sub-custodian may mean you lose incentives and shareholder benefits attaching to the assets. Such nominee or custodian may be located in or outside the jurisdiction in which we provide services to you.

Where your assets are held by a nominee or sub-custodian, we cannot ensure that you would not lose any assets if the entity fails. In order to show that the assets are not available to the entity’s creditors, we will take reasonable steps to ensure that their records reflect that the assets are held for you and that they do not belong to us or the nominee or sub-custodian.
In some jurisdictions, local law might not allow your assets to be separately identifiable from our assets or those of the nominee or sub-custodian. You might be at greater risk of loss if the nominee or sub-custodian fails.
We or our sub-custodian will hold any physical documents of title (including bearer stocks).

You authorise us and our sub-custodian to hold or transfer assets (or entitlements to them) to securities depositaries, clearing or settlement systems, account controllers or other participants in the relevant systems in the course of providing the Services. This applies to assets that are uncertificated or transferable by book entry transfer. These assets or entitlements will be separately identifiable from any assets or entitlements held in the same system for our account.

We will send you a statement about your funds and investments at least on a quarterly basis. This will be based upon the mid-price of the investments held at the specified date. You may also obtain an up to date statement at any time, which will be chargeable.

7. Charges & Fees

7.1 The fees and charges for our services are set out in the accompanying Schedule of Charges which we may amend at any time in accordance with this Agreement and in accordance with FCA rules, subject to one month’s notice to you

7.2 Where we are in receipt of a share of commission, fees or other benefit from third parties we will disclose this to you prior to us carrying out the transaction.

7.3 You agree that you will be responsible for any other fees or charges that may be incurred as a result of our provision of services to you. You agree that you will also pay any Value Added Tax, or any other applicable tax or levy that is due or chargeable in relation to any charges and fees.

7.4 We will normally set out any fees and charges due in relation to a particular transaction on the relevant contract note and will add or deduct them from the costs or proceeds of the transaction as appropriate.

7.5 You agree that we may deduct any sums that you owe us in relation to fees and charges directly from any funds held on your behalf by us.

7.6 In order to meet any liabilities that you may have to us regarding outstanding or unpaid fees and charges, you agree that we are entitled to use any money and / or to sell any investment held on your behalf and to take any other actions we may consider necessary to protect our position.

7.7 We will provide you with an annual summary with appropriate information regarding the costs and charges you have incurred during the year.

7.8 Information about the costs and charges will be provided in aggregated form. If you would like to have an itemised breakdown of the information at any time please contact us.

7.9 Where any element of the costs and charges is to be paid in, or is represented by a foreign currency amount we will indicate the currency involved and the relevant conversion rate and fees.

8. Instructions

8.1 We may rely and act on any instructions, notices or requests of any person who is, or whom we reasonably believe to be, a person designated or authorised by you to give such instructions, notices or requests (whether given in writing (including fax), by telephone, computer based systems or other media) without further enquiry as to the genuineness, authority or identity of the person giving or purporting to give such instructions. We will not be liable for any action we take in good faith, pursuant to receipt of instructions from you.

8.2 We may require (but shall not be obliged to require) written confirmation before acting on oral instructions. We have the right to require (but shall not be obliged to require) a list of persons who are authorised, either alone or with others, to act on your behalf in the giving of instructions and performance of any other acts, discretions or duties under this Agreement together with specimens of their signatures if written instructions are to be given. You warrant that any such list(s) of persons named by you will be correct at the date thereof. You shall notify us immediately of any amendments to such list(s) and provide specimen signatures of new signatories.

8.3 You shall promptly give us confirmation of any instructions to us which we may require in respect of any Transaction or proposed Transaction. If you do not provide confirmation of such instructions promptly or following reasonable efforts by us, we are unable to contact you, we may, in our absolute discretion, take such steps at your cost or refrain from taking any action as we consider necessary or desirable for our or your protection.

8.4 We are not obliged to accept any particular order or agree to enter into a Transaction with you or carry out an instruction received from you. If we decline to enter into a proposed Transaction, we shall not be obliged to give a reason but shall promptly notify you accordingly.

9. Execution of Orders

In order to provide our services to you, we are obliged to obtain information from you, which may include financial and other information concerning yourself and/or where you act as an agent for your Principal, as we from may reasonably request or as we may be obliged to procure in accordance with Applicable Regulations. If you do not provide such information when requested, this may result in us withdrawing our Services from you. In such circumstances, we shall not be responsible for any liabilities suffered or incurred by you as a result of any such decision made.

We may record telephone conversations and other communications with you or any of your agents with or without the use of an automatic tone warning device. Such records will be our sole property and held five (5) years (or more where required by Applicable Regulations). Subject to Applicable Regulations, records may be made available to you on request and will be presented in the language used to provide the Service. Any requests should be made to compliance@dowgate.co.uk. You acknowledge and agree that we may use such recordings and transcripts for any purpose which we deem reasonable use as evidence. Our voice records will be accepted by you as conclusive evidence of your orders, instructions or conversations had with us. We may, if required to do so, also provide such recordings and transcripts to the FCA or other government authority in accordance with Applicable Regulations.

Best Execution Obligations

  • We will owe best execution under Applicable Regulations to you in accordance with our execution policy (“Dowgate Order Execution Policy”) as from time to time in effect, a copy of which has been provided to you (and published at www.dowgatecapital.co.uk). The Dowgate Order Execution Policy, among other things, provides for the possibility of execution outside of a Trading Venue. By accepting these terms of business, by trading with us, you consent to such policy and to the execution of transactions outside of a Trading Venue as set out in Appendix I
  • You hereby expressly instruct us that whenever you place a limit order for shares traded on a regulated market, unless otherwise agreed in writing at the time we accept your order, if the order is not immediately executed under prevailing market conditions, we are not required to make the order public in a manner which is easily accessible to other market participants
  • Orders may be executed by us or passed to any Associate or intermediate broker for execution. We may arrange for a Transaction to be executed, either in whole or in part, by selling an investment to you from another client, or a client of an Associate of ours, or vice-versa. We shall not give you prior notice if we arrange for a transaction to be executed in this manner, but will be bound by our best execution obligations, if applicable
  • We may combine your order with our own, orders of Associates and orders of other clients. Aggregation will only take place if we believe it is likely that the aggregation will not work overall to the disadvantage of each of the clients concerned. However, on some occasions, aggregation may result in you obtaining a less favourable price in relation to a particular order.
  • We will provide you with confirmation of all Transactions carried out on your behalf in accordance with Applicable Regulations (including any terms we have separately agreed with you regarding the extent and nature of such confirmation). You agree that we may send confirmations and other statements by e-mail to the e-mail address on record for you or as otherwise agreed between us. It is your responsibility to inform us of any change to your e-mail address, the non-receipt of confirmation, or whether any confirmations are incorrect before settlement. Subject to Applicable Regulations, we may send you a single confirmation in respect of a series of Transactions unless agreed in writing otherwise. All confirmations and other statements which we send to you will be conclusive and binding on you unless you notify us in writing within two Business Days of receipt by you that you disagree with its contents, or we notify you of an error in the confirmation within the same period.
  • You acknowledge and understand that business on a Market may from time to time be suspended or restricted or the Market may from time to time be closed for a temporary period or for such longer period as may be determined in accordance with the rules of any Market or the occurrence of one or more events which require such action to be taken in the interests of, maintaining a fair and orderly market. Any such action may result in us being unable, and through us, you being unable to enter into Transactions in accordance with the rules of the relevant Market. Furthermore we, and through us, you may from time to time be prevented from or hindered in entering into Transactions in accordance with the rules of the relevant Market as a result of a failure of some or all of the Market’s facilities. We shall have no liability to you as a result of any of the circumstances or occurrences referred to in this Clause.
  • Give – up: In respect of every Transaction made between us and you and given up to be cleared by another broker or dealer as specified by you:
    • if such broker or dealer accepts the give-up, we shall (without prejudice to any claim we may have for commission or other payment) upon such acceptance transfer the financial instrument to such party and will have no further obliga-tion to you in respect of the Transaction;
    • o if such other broker or dealer declines to accept the give-up, we shall be entitled at our option either to confirm the transaction with you or to liquidate it by such sale, purchase, disposal or other transaction or cancellation as we may in our discretion determine, whether on the relevant exchange or market or by private contract or any other feasible method (including us taking it over or transferring it to an associate); and any balance resulting from such liquida-tion shall be promptly settled between us and you but without prejudicing the Firm’s rights under this Agreement.
  • The majority of our Transactions will be performed on a Trading Venue. However, where you are an Investment Firm and we enter into a Transaction outside the rules of a Trading Venue, the responsibility for Trade reporting the Transaction shall fall on the relevant party designated under MiFID II.
  • Unless otherwise agreed in writing, where you are an Investment Firm, we will not report such Transactions on your behalf. In either case, the relevant Transaction information will be made public in accordance with MiFID II. If we are required to report the Transaction, we may rely upon third parties to undertake this task.
  • Where we enter into Transactions on a Trading Venue the reporting obligations will be in accordance with the rules of the Trading Venue.
  • We shall provide you with a statement of holdings on a quarterly basis if we hold any client funds or Financial Instruments.

10. Settlement of Transactions

10.1 All transactions will be due for settlement in accordance with market requirements and the relevant contract note or advice. You undertake to ensure that all securities and other documents of title and/or transfer forms that are required and or/any relevant cash balance are delivered, transferred or paid to our Custodian in reasonably sufficient time on or before the contractual settlement date to enable settlement of the transaction and that all cash and securities held by, or transferred to our custodian will be and remain free from any lien, charge or encumbrance and that all payments will be made without set-off, counterclaim or deduction.

10.2 You acknowledge that in settling transactions on your behalf we and our Custodian are acting as agent on your behalf and that we will not be responsible for any default or failure on the part of any counterparty to a transaction or of any depositary or transfer agent and delivery or payment will be at your entire risk.

10.3 You acknowledge that you shall not have any rights in respect of any cash or investments that are due to be received pursuant to a transaction and that we shall have no obligation to account to you for any such cash or investments until you have performed your obligations in relation to such transactions and, as your agent, we have been able to settle the transaction. We shall, without further notice to you, be entitled to sell or otherwise dispose of any such investments and apply any proceeds or any cash received by us or our Custodian in discharge or reduction of any of your obligations to us.

10.4 Any transactions undertaken on your behalf on non-UK markets shall be subject to the rules of the relevant overseas exchange, clearing system or depositary and any terms of the foreign agent or custodian employed by our Custodian, including but not limited to, any right of reversal of any transaction (including any delivery or redelivery of any investment and any payment) on the part of any such entity or person.

11. Conflict of Interests

11.1 When we provide services to you, we or an associate of ours may have a material interest or a conflict of interest in relation to the investment, transaction or service concerned. We have in place arrangements to manage conflicts of interest that arise between ourselves and our clients and between our different clients. Where we do not consider that the arrangements under our conflicts of interest policies are sufficient to manage a particular conflict, we reserve the right to decline to act for you.

11.2 Where a conflict of interest arises and identify that our actions to manage the conflict of interest is not sufficient to ensure, with reasonable confidence, that risks of damage to your interests will be prevented, we will disclose the nature and/or sources of the conflict before undertaking business for you. We may also decline to act where we believe there is no practicable way of treating you and our other clients fairly. If you object to us acting, once such a disclosure has been made, you should contact your usual contact at Dowgate in writing. Unless Dowgate is notified, it will be assumed that you do not object to our so acting

11.3 A copy of DC’s conflicts policy is available on request from compliance@dowgate.co.uk

12. Contract Notes

12.1 We or our Custodian will provide to you following each transaction a contract note showing full details of the transaction including our remuneration, costs and charges. These will be provided either by email or post quarterly statements of account, which will show the transactions entered into by us together with income and other payments received from you or on your behalf during the relevant period. Upon request statements can be provided more frequently, but this will incur an additional charge.

12.2 It is your responsibility to check the accuracy of the information given in our contract notes and to notify us immediately if you believe anything to be inaccurate. In the absence of manifest error, such contract notes will be conclusive and binding on you unless immediately following receipt, you give us notice in writing of any objections.

13. ISAs and JISAs

13.1 Our Supplementary Terms for the operation of ISA and JISA accounts are set out in Appendix II.

14. Security and Default

14.1 You hereby grant to our Custodian a first fixed charge (with full title guarantee) and a general lien and right of set-off with respect to all cash, securities, or other assets of any description paid or delivered (or which are due to be paid or delivered) to your account in settlement of any transaction. You warrant that all such cash, securities or other assets are beneficially owned by you or are paid or delivered to your account with the beneficial owner’s consent and free and clear of any charge, lien or encumbrance and that you will not charge, assign or otherwise dispose of or create any interest in such cash, securities or other assets other than in accordance with these Terms without our prior consent.

14.2 You agree to take such action as our Custodian may require to perfect or enforce any security interest referred to above and you hereby irrevocably appoint our Custodian as your attorney to take any such action on your behalf. You acknowledge and agree that if you fail to comply with any of your obligations under these terms, the security interests referred to above shall be enforceable and the powers conferred by Section 101 of the Law of Property Act 1925 (as varied and extended by these terms) shall be exercisable. Section 103 of the Law of Property Act 1925 shall not apply to these terms.

14.3 In the event that cash or securities are not received by our Custodian when due (as shown in the relevant contract note or advice) or in the event of you not taking all such steps as may be necessary to secure the due and prompt settlement of any such transaction (or if we reasonably consider that you have not performed or are unlikely to perform your obligations under these Terms), we may, inter alia, without further notice to you, enforce security and/or cancel, close out, terminate or reverse all or any contracts or transactions and sell, charge, pledge or otherwise dispose of any securities or other assets held in your account at whatever price and in whatever manner we, acting in good faith, see fit in our absolute discretion (without being responsible for any loss or diminution in price) and may enter into any other transaction or do or not do anything which would or could have the effect of reducing or eliminating our liability under any transaction, position or commitment undertaken for you.

14.4 For the avoidance of doubt, any asset held for you can be realised in order to discharge any obligation you have to us or our Custodian including any investments held in safekeeping and any investments held in the course of settlement.

14.5 We or our Custodian shall not be liable to you in respect of any choice made in selecting the investments to be sold. The proceeds of sale (net of costs) will be applied in or towards the discharge of your liabilities and we will account to you for any balance. In the event that such proceeds are insufficient to cover the whole of your liabilities, you will remain liable to us and our Custodian for the balance.

14.6 In exercising any right or remedy pursuant to these terms, you authorise us or our Custodian to affect such currency conversions and enter into such foreign exchange transactions with, or on behalf of you, at such rates and in such manner as we may, in our absolute discretion, determine. You acknowledge and accept that in exercising any right or remedy pursuant to these terms we and our Custodian will be acting on our own behalf rather than executing your orders.

15. Data Protection and Disclosure of Information

15.1 For the purpose of the Data Protection Act 1998 (the “DPA”) and the General Data Protection Regulations 2018 (the “GDPR)” (and related Applicable Regulations), we are a ‘data controller’ which has consequences for how we may use, store or otherwise process any personal data provided by you, your employees, agents or representatives.

15.2 To provide Services under this Agreement it is likely that we will need to gather information from you (“Data Subjects”) including, but not limited to, names, contact details, bank account details, and tax identification number (“Personal Data”). You agree that such Personal Data may be processed by us or an Associate for the purpose of this Agreement, providing services to you, recovering a debt, preventing fraud or money laundering, for disclosure to a governmental authority, stock exchanges and clearing houses, to persons who provide us with services in connection with anti-fraud controls, to our agents and contractors for the purposes of providing Services, or marketing similar financial services and products provided by us or third parties to you or in accordance with your specific instructions (the “Permitted Purposes”).

15.3 If you do not want personal data to be used for marketing purposes, you can make the notification to compliance@dowgate.co.uk.

15.4 We rely on the following legal bases for processing as defined in the DPA and GDPR to use Personal Data for the Permitted Purposes described above:

15.5 (a) that we have received consent from you and any other Data Subjects to such processing; and/or

15.6 (b) that the processing is necessary for compliance with our legal obligations;

15.7 (c) that the processing is necessary for us to provide our Service under this Agreement; and/or

15.8 (d) that the processing is necessary for the legitimate interests of us and any third-party recipients that may receive Personal Data (as identified in Clause 23.5 below). These legitimate interests are those activities relating to the provision of the services for the Permitted Purposes.

15.9 We may, for any Permitted Purpose, transfer or disclose personal data to any Associate of ours anywhere in the world, to any person acting on our behalf, to any person to whom we are permitted to delegate any of our functions under this Agreement (other than to the extent that you have indicated that you do not want your personal data to be used for marketing purposes), to any regulators and governmental agencies, in any jurisdiction, where we are required to do so by Applicable Regulations, there is a public duty or legitimate interest for us to make such disclose. You also agree that the Permitted Purposes may be amended to include other uses or disclosures of Personal Data by notice to you. You may request us to make available to you a copy of your Personal Data.

15.10 Where any of our Associates are based outside the EU, including in countries which may not have the benefit of equivalent data protection legislation. In such instances we will only transfer personal data subject to appropriate safeguards, copies of which may be requested from compliance@dowgate.co.uk

15.11 By entering into the Agreement you confirm that:

(a) where you are an individual, you consent to the processing of your Personal Data as for the Permitted Purposes described above;

(b) where you are an individual, providing us with Personal Data concerning other Data Subjects, or a corporate providing us with the Personal Data of your employees, agents and representatives, you have obtained their explicit consent to our using their Personal Data for the Permitted Purposes described, and can demonstrate this to us if requested; and

(c) you agree that our processing for the Permitted Purposes is warranted as it is necessary for our legitimate interests, and that this does not prejudice your rights or those of the other data subjects involved.

15.12 Any Data Subject in respect of whom we hold Personal Data can:

  • obtain a copy of their information free of charge by writing to the Compliance Officer at 15 Fetter Lane, London, EC4A 1BW or requesting by e-mail at compliance@dowgate.co.uk. We can provide this information in a machine-readable format or transfer this data directly to another data controller where requested. We reserve the right to charge a reasonable administration fee for additional copies or manifestly unfounded or excessive requests for this information, and to require appropriate proof of identity;
  • raise complaints in relation to our processing of this Personal Data with the Information Commissioners’ Office;
  • withdraw the consents to processing provided pursuant to this Agreement, although the exercise of this right will not affect any data processed prior to this withdrawal and may mean we will not be able to provide services to you
  • object to the processing of Personal Data on the legal basis of legitimate interests (as described in Clause 23.5(c) above), and request that we demonstrate our compelling legitimate grounds in order to continue such processing;
  • request the erasure of their Personal Data in the following circumstances:
    • the personal data is no longer required for the Permitted Purposes for which they were collected or processed;
    • the Personal Data should be erased to comply with our legislative obligations to do so;
    • the Personal Data has been otherwise unlawfully processed; and
    • the data subject has objected to the processing of their personal data in accordance with the Agreement, and we are unable to demonstrate that we have compelling legitimate grounds to continue such processing;
  • request that we rectify inaccuracies in the personal data; and
  • request that we restrict any processing of their Personal Data only to holding of the data while any disputes with us about the data

accuracy or legitimacy of processing have been resolved, or for assistance with establishing, exercising or defending legal claims (where we would otherwise no longer need to retain such data for the Permitted Purposes described above).

15.13 Subject to clause 17.12, we will not keep your Personal Data for longer than is necessary for the Permitted Purposes in order to provide Services.

16. Liability and Indemnity

16.1 Neither we or our Custodian, nor any of its directors, employees or agents, shall be liable for any loss or damage sustained by you as a direct or indirect result of the provision by us of these services, save that nothing in these terms shall exclude or restrict any liability resulting from the negligence, fraud or wilful default or any contravention by us of the FCA Rules. We or our Custodian shall not, in any event, be liable for any indirect or consequential loss (including any loss of profit), or for any losses that arise from any damage to your business or reputation.

16.2 You undertake to indemnify us and our Custodian and each of its directors, employees and agents (“Indemnified Persons”) on an after-tax basis, against any liabilities, reasonable costs and expenses (including legal costs) and all duties and taxes (other than our corporation tax) which are caused by:

  1. the provision by us or our Custodian of its services to you;
  2. any material breach by you of any of these Terms;
  3. any default or failure by you in performing your obligations to make delivery or payment when due; or
  4. any securities delivered to us or our Custodian by or on your behalf or in relation to any instrument of transfer in relation to such securities (including any electronic instruction) purporting to transfer such securities. We or our Custodian shall not be entitled to be indemnified against the consequences to us of our own negligence or wilful default or any contravention by us of any provision of FCA rules.

16.3 We or our Custodian shall have no liability for any circumstance or failure to provide any of the services if such circumstance or failure results wholly or partly from any event or state of affairs beyond our reasonable control (including, without limitation, any failure of communication, settlement, computer or accounting system or equipment, any failure or interruption in the supply of data, any political crisis or terrorist action, the suspension or limitation of trading by any exchange or clearing house or any fire, flood or other natural disaster) and, in such circumstances, any of our obligations shall be suspended pending resolution of the event or state of affairs in question.

16.4 The provisions of this clause shall continue to apply notwithstanding the fact that we cease to provide services and shall be in addition to any other right of indemnity or claim of any Indemnified Person whether pursuant to these terms or otherwise and shall not be affected by any forbearance, whether as to payment, time, performance or otherwise.

17. Complaints & Compensation

17.1 Any complaints about the services provided to you should be sent in the first instance to: The Compliance Officer, Dowgate Capital Limited, 15 Fetter Lane, London, EC4A 1BW.

17.2 We will endeavour to resolve your complaint as quickly as possible, but in any event, we will acknowledge receipt of your letter within five business days. The acknowledgement will include a full copy of our internal complaints handling procedure. Upon resolution of your complaint, we will send you a final response letter, which will set out the nature of the resolution and any applicable remedy. If for any reason you are dissatisfied with our final response you may refer your complaint to the Financial Ombudsman Service, Exchange Tower, London E14 9SR (www.financial-ombudsman.gov.uk). A leaflet detailing the procedure will be provided with our acknowledgement letter.

17.3 DC and our Custodian are covered by the Financial Services Compensation Scheme (“FSCS”). Compensation may be available from the FSCS if we and / or our Custodian cannot meet our obligations to you. Further information about the compensation arrangements is available from the Financial Services Compensation Scheme, PO Box 300, Mitcheldean, GL17 1DY (www.fscs.org.uk).

18. Notices

18.1 Any notice or other communication (including contract notes and share certificates) to be given to you by us or our Custodian in relation to this Agreement (“notice”) shall be in writing and sent, in the case of postal communication, to the address stated on your Application Form or such address as you may subsequently specify by notice in writing to us. Any notice shall be deemed to have been received by you, 2 days after we post it to you, immediately upon sending if it is sent to you by fax or if sent by email, when it is received by your internet service provider.

18.2 You agree to notify us of any change to your address as soon as practicable.

18.3 All notices given by you to us under this Agreement must be in writing and delivered or sent by post to our registered office or such other address as we may specify and we may act and rely on any instruction that appears to be signed by you.

19. Delegation and Assignment

19.1 We may delegate any function that we are required to provide under this Agreement to a third party, including our associates. Any such delegation will not affect our liability to you or our obligation to provide any services under this Agreement.

19.2 We will not be required to provide you with any notice of any arrangements that we may make to delegate any function.

19.3 We may assign any part of our rights or obligations under this Agreement to any of our associates without your consent. However, should we do so, we will provide you with written notice of any assignment. You agree that you will enter into any documentation that we may require you to enter into in order to facilitate such an assignment.

19.4 You may not assign or transfer any rights or obligations under the Agreement without our prior consent.

20. Entire Agreement

20.1 This Agreement sets out all of the terms and conditions relating to the provision by us of these services to you. We may amend this agreement by sending you a written notice describing the relevant changes. Any changes will become effective on a date specified in the notice. Any changes to this agreement proposed by you will only become effective once they have been agreed in writing by us.

21. Contracts (Rights of Third Parties) Act 1999

21.1 You agree that our associated companies may enforce this Agreement against you as if they were a party to this Agreement. Otherwise, a person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Agreement.

22. Governing Law and Jurisdiction

22.1 The Agreement is subject to English Law and you agree to submit to the exclusive jurisdiction of the English courts in the case of any dispute regarding the Agreement.

23. General

23.1 No third party shall be entitled to enforce these terms in any circumstances.

23.2 Any failure by us (whether continued or not) to insist upon strict compliance with any of these Terms shall not constitute nor be deemed to constitute a waiver by us of any of its rights or remedies. The rights and remedies conferred upon us shall be cumulative and the exercise

or waiver of any part thereof shall not preclude or inhibit the exercise by us of any other additional rights and remedies.

24. Termination

24.1 We reserve the right to terminate this Agreement for whatever reason by notice in writing to you. If we do so we shall not enter into any new
transactions on your behalf. We also reserve the right to terminate this Agreement without notice to you if no transactions have been executed on your account for a period of no less than one year.

24.2 You may terminate this Agreement at any time and you may cancel the Agreement within 14 days of it coming into effect by giving written notice to us.

24.3 This Agreement will only be terminated or cancelled following satisfactory settlement of any open positions and all amounts owing to us have been paid. Termination will be without prejudice to the completion of any transactions already initiated.

24.4 Upon termination or cancellation, unless we agree otherwise, any money owing to you will be sent by cheque to your correspondence address and securities held on your behalf will be re-registered in your own name and title documents issued to you. You agree that you remain responsible for ensuring that any fees or costs associated with termination may be deducted from your account or paid to us before this Agreement is terminated.

APPENDIX I

RISKS

Investing in stocks and shares always carries elements of risk. Retail clients are provided greater protections under FCA rules than other clients and you should be aware of your rights of access to the Financial Ombudsman Service and other benefits. Investments put your capital at risk and value of your investments can go down as well as up. You may not get back the amount invested and Past performance is not necessarily a guide to future performance.

The risks set out below are for information purposes and not considered an exhaustive list, but provided as a guide

1. Non-Readily Realisable Investments

1.1 We may enter into transactions on your behalf in non- readily realisable investments. You may have difficulty selling this type of investment at a reasonable price, and, in some circumstances, it may be difficult to sell it at any price or to obtain reliable information about its value. Do not invest in these types of investments unless you have carefully thought about whether you can afford it and whether it is right for you.

1.2 When recommending to you a transaction in non- readily realisable investments, we will disclose to you any position which we or any of our associated companies knowingly holds in such investments or in related investments. Please inform us if you do not wish us to recommend to you or undertake for you transactions in such shares.

2. Small-Cap Shares

2.1 There is an additional risk of losing money when shares are bought in some smaller companies including penny shares. Usually, there is a big difference between the buying price and the selling price of these shares. If they have to be sold immediately, you may get back much less that you paid for them. The price may change quickly and it may go down as well as up. Please inform us if you do not wish us to recommend to you or undertake for you transactions in penny shares.

3. Investment Trusts

3.1 Investment trusts are companies which are listed on stock exchanges and whose main business activity is investing in other companies. Most investment trusts can, and some do, borrow money to make investments. This can increase the volatility of the price of the shares of the investment trust itself, and can increase the risk of investing in such shares. The strategy which the issuer of the securities uses or proposes to use may result in:

  1. movements in the price of the securities being more volatile than the movements in the price of the underlying investments;
  2. the investment being subject to sudden and large falls in value; and
  3. the customer getting back nothing at all if there is a sufficiently large fall in the value of the underlying investment.

3.2 Please inform us if you do not wish us to recommend to you or undertake transactions for you in investment trusts or investment companies.

4. Warrants

4.1 A warrant is a time-limited right to subscribe for shares, debentures, loan stock or government securities and is exercisable against the original issuer of the underlying securities at a predetermined price. A relatively small movement in the price of the underlying security results in a disproportionately large movement, unfavourable or favourable, in the price of the warrant. The prices of warrants can therefore be volatile.

4.2 It is essential for anyone who is considering purchasing warrants to understand that the right to subscribe which a warrant confers is invariably limited in time with the consequence that if the investor fails to exercise this right within the predetermined time-scale then the investment becomes worthless.

4.3 You should not buy a warrant unless you are prepared to sustain a total loss of the money you have invested plus any commission or other transaction charges.

4.4 Some other instruments are also called warrants but are actually options (for example, a right to acquire securities which is exercisable against someone other than the original issuer of the securities, often called a ‘covered warrant’).

4.5 Please inform us if you do not wish us to recommend to you or undertake transactions for you in warrants or covered warrants.

5. Stabilisation

5.1 We may, from time to time, recommend transactions in securities to you, or carry out such transactions on your behalf, where the price may have been influenced by measures taken to stabilise it.

You should read carefully the explanation below relating to stabilisation. This is designed to help you judge whether you wish to invest at all in such securities.

5.3 What is Stabilisation? Stabilisation enables the market price of a security to be maintained artificially during the period when a new issue of securities is sold to the public. Stabilisation may affect not only the price of the new issue but also the price of other securities relating to it. The FCA allows stabilisation in order to help counter the fact that, when a new issue comes onto the market for the first time, the price can sometimes drop for a time before buyers are found.

5.4 Stabilisation is carried out by a “stabilisation manager” (normally the firm chiefly responsible for bringing a new issue to market). As long as the stabilising manager follows a strict set of rules, they are entitled to buy back securities that were previously sold to investors or allotted to institutions which have decided not to keep them. The effect of this may be to keep the price at a higher level than it would otherwise be during the period of stabilisation.

5.5 The stabilisation rules:

  1. limit the period when a stabilising manager may stabilise a new issue;
  2. fix the price at which he may stabilise (in case of shares and warrants but not bonds); and
  3. require him to disclose that he may be stabilising but not that he is actually doing so.

5.6 The fact that a new issue or a related security is being stabilised should not be taken as any indication of the level of interest from investors, nor of the price at which they are prepared to buy the securities.

5.7 Please inform us if you do not wish us to recommend to you or undertake transactions for you in securities subject to stabilisation.

6. Foreign Markets

6.1 Foreign markets will involve different risks from the UK markets. In some cases, the risks will be greater. On request, we will provide an explanation of the relevant risks and protections (if any) which operate in any foreign markets. We do not accept liability for any default of a foreign firm through whom we deal. The potential for profit or loss from transactions on foreign currency markets or in foreign denominated contracts will be affected by fluctuations in foreign exchange rates.

7. Suspensions of Trading

7.1 Under certain trading conditions it may be difficult or impossible to liquidate a position. This may occur, for example, at times of a rapid price movement if the price rises or falls in one trading session to such an extent that under the rules of the relevant exchange trading is suspended or restricted.

APPENDIX II

SUPPLEMENTARY TERMS AND CONDITIONS FOR ISA AND JISA ACCOUNTS

1. Introduction

1.1 These Supplemental Terms and Conditions for ISAs and JISAs (“Supplemental Terms”) apply only to the ISAs and JISAs we provide to you. The Supplemental Terms form part of the Terms as described in Section 1 of our general Terms and Conditions of Business. If there is any conflict between these Supplemental Terms and the Terms, the Supplemental Terms shall prevail.

2. Definitions

2.1 In these Supplemental Terms the following definitions apply:

“Account” means the account holding the investments for your DC ISA or JISA;
“DC ISA or JISA” means a Dowgate Capital ISA or Dowgate Capital JISA as appropriate;
“Dowgate Capital ISA” means a Stocks & Shares ISA, operated by DC and managed by JIM, which holds investments eligible for a Stocks and Shares ISA as defined by the Regulations;
“Dowgate Capital JISA” means a Stocks & Shares Junior ISA operated by DC and managed by JIM which holds investments eligible for a Stocks and Shares Junior ISA as defined by the Regulations;
“Eligible Child” means a UK resident under the age of 18 in whose name and for whose benefit a Dowgate JISA is held and otherwise satisfies the conditions for eligibility to hold a JISA under the Regulations;
“ISA Manager” means a person authorised by HMRC to act as an ISA Manager for the purposes of the Regulations;
“JIM” means Jarvis Investment Management Limited;
“Qualifying Investments” means investments qualifying for inclusion in an ISA or JISA under the Regulations;
“Regulations” means the Individual Savings Account Regulations 1998 as amended from time to time;
“Registered Contact” means a person who is over 16 and either has parental responsibility in relation to the Eligible Child or is the Eligible Child who is over 16 and applied for the DC JISA;
“Tax Year” means the period from 6th April of any one year to the 5th April of the following year.

2.2 All references to “you”, “your” or “yourself refers to you as an individual, the Eligible Child and / or the Registered Contact as appropriate.

3. Your Application and Agreement

3.1 You acknowledge and agree that we shall, on your behalf, appoint JIM as the ISA Manager for your DC ISA or JISA. JIM will perform all such duties as are required of an ISA Manager including, but not limited to, settling your trades, taking custody of your cash and investments within the Account, recovering from HMRC such tax credits on dividends that are reclaimable for the benefit of the Account and reporting to HMRC as required. We shall be responsible for executing orders for your DC ISA or JISA or, if appropriate, advising you on your DC ISA or JISA investments or in the case of a discretionary account selecting, buying and selling investments without restriction.

3.2 Your DC ISA or JISA will open when we confirm receipt of a duly completed Application Form together with payment of your initial subscription.

3.3 Subject to the Regulations, we may open your ISA or JISA provisionally where the information you have supplied is insufficient. Where we open an ISA or JISA provisionally you shall supply us with the missing information within 30 days, otherwise the ISA or JISA will be voided in accordance with HMRC requirements and the relevant assets will be transferred out of the Account.

3.4 Your DC ISA or JISA Account Application will cover the current tax year and each subsequent tax year until we receive no subscription for a full tax year. You shall inform us immediately if you cease to be a UK resident for tax purposes, or if being a non-resident, you cease to either perform duties which, by virtue of Section 28 of Income Tax (Earnings & Pensions) Act 2003 (Crown employees serving overseas), are treated as being performed in the UK, or be married to, or in civil partnership with, a person who performs such duties. In the case of an ISA or JISA transfer, we will commence management of your Account

upon receipt by us of the proceeds from your previous ISA Manager.

Subscriptions may be made at any time to your Account subject to the maximum annual subscription permitted by the ISA Regulations.

3.6 If you do not make a subscription to your Account within 3 months of registering, we reserve the right to close the Account without notice.

4. Account Investments

4.1 You authorise JIM to recover from HMRC such tax credits on dividends that are reclaimable for the credit of the Account.

4.2 Dividends, tax reclaimed and other income that JIM collect for you will be credited to your Account as soon as is practicable. We and JIM will not be responsible for any loss of interest due to any delay outside of our control in crediting income received to your Account.

4.3 You may only invest in Qualifying Investments in your Account. You must ensure that any investments you select for your Account are, and continue to be, Qualifying Investments. If you purchase an investment that is not a Qualifying Investment, you do so at your own risk.

4.4 If an investment in your Account ceases to be a Qualifying Investment, or upon investigation by JIM or us, is no longer deemed to be a Qualifying Investment, then we will contact you by telephone and/or in writing and give you the option to either:

  1. sell the investment and retain the proceeds within your Account; or
  2. withdraw the investment from the Account, subject to payment of a withdrawal charge as set out in our Schedule of Charges.

If we do not receive instructions from you by a specified date, we will sell the holding on your behalf.

4.5 Any interest paid on cash held in your Account will be subject to a non-reclaimable flat rate charge imposed by HMRC.

4.6 You may apply for public offers of shares in qualifying companies using cash held within the Account but cannot apply or subscribe for shares in private placings. If you are using sale proceeds, the monies from the sale transaction must be available before the deadline in order to take up the offer.

4.7 Payment of any calls or instalments due must be made from cash held or generated within the Account.

4.8 In accordance with HMRC rules, foreign currency cannot be held in an ISA. If the base currency of an investment is not sterling, a foreign currency exchange must be done at the time of dealing.

5. Fees and Charges

5.1 Commission on all transactions effected on your behalf under these Supplemental Terms, together with stamp duty reserve tax, PTM levy and any other associated charges where appropriate will be charged at the rates currently applicable. These charges must be met from within the Account.

5.2 Administration and management fees will be collected quarterly in arrears or on closure if earlier. These fees may be met from inside or outside of the Account and may be paid by sterling cheque drawn on a UK bank account, debit card of by transferring funds from another account in your name held with us.

5.3 If there is insufficient cash in your Account to meet the administration and management fees, we require you to pay the full amount or the difference within 30 days of the fee becoming due. If the fee is outstanding after 30 days, we reserve the right to debit the fee from any other account we hold for you or to sell investments from the Account to which the fees relate to or from any other account you may hold with us. Any sale will incur normal charges.

6. Termination, withdrawals, transfers and death of investor

6.1 Subject to the Regulations, the settlement of outstanding investment transaction(s), and any tax liabilities, charges and expenses, you may transfer your ISA or JISA or withdraw part or all of the investments in your Account at any time by giving us written instructions. Such transfer or withdrawal will take place as soon as reasonably practicable and in any event within 30 days of receipt of your request.

6.2 In the event of a withdrawal, termination or transfer of your Account, any fees and charges paid to us will not be repaid to you whether in whole or in part.

6.3 You shall be entitled to transfer your ISA or JISA or make withdrawals without restriction

6.4 We may terminate the ISA or JISA with immediate effect by providing you with written notice of termination, if in our reasonable opinion it is impossible to administer the account in compliance with the regulations.

6.5 If you reduce or give instructions to reduce the level of cash and/or investments in your Account to a value below our closure fee or to such an extent that we, in our reasonable opinion, believe you are maintaining ISA solely to avoid our closure charges, then we may terminate the ISA with immediate effect and charge you our normal closure fee.

6.6 Subject to receipt of written instructions, we will arrange for all or part of your investments or the proceeds arising from those investments, to be transferred or paid to you, or another ISA Manager, within a period not exceeding 30 days, from receipt of your instructions.

6.7 ISAs and JISAs terminate automatically on the death of an investor and the rights to them vest in the personal representatives of the investor. Should you die, your Account will cease to be exempt from tax and the assets will be held by JIM pending instruction from your personal representatives. They may, subject to providing a certified copy of your death certificate and probate, direct that the investments be sold or registered out in the names of the appropriate beneficiaries. Normal administration and management fees, commissions and charges will continue to apply until such time as the Account is closed.