These terms and conditions set
out the legal relationships between Thomas Murray Technology Ltd and the users
of this website.
DEFINITIONS
In these Conditions:
"TM" means Thomas Murray Community;
"this Agreement" means the agreement made between the Company and
the User which shall consist of:
(a) these Conditions; and
(b) any terms and conditions that are intended to be binding on
the User set out by the Company on this website from time to time;
УThomas Murray CommunityФ (УTMCФ) means either the business
community of TMC established via this website or this website (as the case may
be);
"the Company" means Thomas Murray Technology Limited;
"these Conditions" means these terms and conditions;
"Interest" means interest at a rate of 4bove the base
lending rate of HSBC Bank plc from time to time;
"the Service" means the services provided by the Company via this
website; "Service Provider"
means a User who provides or wishes to provide services to another User;
"Specified Email Address" means the email address stipulated by
the User for the receipt of emails from the Company from time to time;
"Third Party" means any person who either contacts the User or
who is contacted by the User in connection with any services offered through the
Thomas Murray Community; and
"User" means a registered user of this website (and
"Users" shall be construed accordingly).
SECTION A - COMPLIANCE ISSUES
This website (the
"Site") has been established by the Company for the purpose of
exchanging information, analysis, comment and opinion in the area of banking
known as custody. The Company is not regulated under any of the Financial
Services legislation in the UK,
United States of America
or other territories. The Site is displayed for information purposes only and should
not be construed as an offer of, or a solicitation of an offer to purchase,
securities or investment advisory services. Thomas Murray Technology Limited make
no representation as to the completeness or accuracy of the information or of
any opinions expressed in this Site nor accept any liability for any loss or
damage which may arise directly or indirectly from any use of or reliance on
such information. In particular, you should be aware that the information may
be incomplete, may contain errors or may have become out of date. Readers
should not assume that the information contained on the Site has been updated
or otherwise contains current information. Thomas Murray Technology Limited reserves
the right to add to, modify or delete any information on this Site at any time.
Without limiting the foregoing, Thomas Murray Technology Limited makes no
representation or warranty with regard to, and accepts no liability or
responsibility for, any information on the Site provided by anyone other than Thomas
Murray Technology Limited. This publication and any references to products or
services are provided "as is" without any warranty or implied term of
any kind.
The services and investments
referred to in the Site are not available to persons resident in any country
where the provision of such services or investments would be contrary to local
law or regulation.
Postings on the Site are made
at such time as determined by Thomas Murray Technology Limited in their
discretion.
SECTION B - THE COMPANY'S
LIABILITY
- During
the term of this Agreement the Company shall:
a. use its reasonable
endeavours to provide the Service; and
b. use its reasonable
endeavours maintain its website at thomasmurraycommunity.com.
- (To
be agreed/discussed)SUBJECT TO CONDITIONS B.3 AND B.4 BELOW THE COMPANY'S
TOTAL LIABILITY TO THE USER UNDER OR IN CONNECTION WITH THIS AGREEMENT
WHETHER IN CONTRACT TORT (INCLUDING THE TORT OF NEGLIGENCE) OR OTHERWISE
SHALL NOT EXCEED £50,000.
- The
User acknowledges that amounts charged by the Company to the Users have
been calculated with reference to the exclusions of liability set out in
Condition B.2 but that the Company is prepared (at the User's request) to
agree a higher limit of liability on the understanding that the User pays
the insurance premiums required to provide the Company with insurance
cover for its liability to the User.
- The
limitation on the Company's liability set out in Condition B.2 or agreed
under Condition B.3 shall not apply in respect of death or personal injury
caused by the Company's negligence and there shall be no limit of
liability in those circumstances.
- Whilst
the Company shall use its reasonable efforts to ensure that this website
remains operational the Company shall not be liable to Users for any
failures of this website to function correctly or to be accessible to
Users that are attributable either to matters beyond the Company's
reasonable control, or to essential maintenance works.
- The
User is advised that they may be liable to the Company and the other Users
in contract or in tort for any false or misleading information that they
might post on this website and (in the case of if the User is a Service
Provider) for any defective services that it might provide to other Users.
SECTION C - REGISTERED AND
NON-REGISTERED USERS
PLEASE READ THIS SECTION
CAREFULLY
╖
Access
to the Site is restricted to registered users of this website and usernames and
passwords are required to evidence a User's entitlement to access the site.
╖
Any
person who enters the password restricted parts of this website is deemed to be
a registered user who has accepted these Conditions and agreed to be bound by
them.
╖
The
User confirms that these Conditions shall (as the User shall ensure) apply to
and bind any of the User's employees or contractors that the User permits to
use this website and the User shall be liable to the Company and to other Users
for the acts and omissions of those employees and contractors and for the legal
and other consequences of those employees or contractors failing to comply with
these Conditions and any laws and regulations governing this website including
the compliance issues noted in Section A above.
╖
The
Company shall have no liability to users of this website that are not
registered users.
SECTION D - ANONYMOUS POSTING
AND MODERATION
1. THE USER
ACKNOWLEDGES THAT THE USER'S ABILITY TO ANONYMOUSLY POST ANY MESSAGES ON THIS
WEBSITE IS STRICTLY REGULATED BY CONDITIONS E2 to E8 (INCLUSIVE) BELOW.
2. The User's right to
anonymously post messages shall only be exercised in bona fide circumstances
when the User wishes to express views that are for the benefit of the TMC community
and which either do but reflect the views of his or her employers or reasonably
require the User to remain anonymous for any other reason.
3. All anonymous
postings must comply with Condition G.14 and must be accurate in material
respects.
4. The Company reserves
the right to moderate all postings contributed to the TMC notice boards and all
anonymous postings will be moderated as a matter of course.
5. The User
acknowledges that:
a. the Company may (in
its sole discretion) refuse to post any anonymous message without liability to
the User; and
b. (if
any anonymous posting is made) the Company may withdraw the posting at any time
and for any reason and the User acknowledges that the Company may also (in its
sole discretion) disclose the name of the User in connection with any anonymous
posting where it believes it is reasonable to do so. This shall include any
situation in which it appears that the User has not complied with the provisions
of Condition G.14.
6. The User
acknowledges that the moderation of postings by the Company (see Condition E.4)
may result in a delay in the postings in question being displayed on this
website.
7. The User
acknowledges that the indemnification provisions of Condition G.18 shall apply
to all breaches of the User's obligations under this Section E of these
Conditions.
8. The User
acknowledges that the Company may at any time immediately withdraw the right of
any or all Users to make anonymous postings.
SECTION E - INVESTMENT
DECISIONS
- HAVING
REGARD TO CONDITIONS F.2 AND F.3 THE USER WARRANTS AND REPRESENTS TO THE
COMPANY THAT THE USER SHALL MAKE NO INVESTMENT OR OTHER DECISIONS BASED
SOLELY UPON ANY INFORMATION CONTAINED ON THIS WEBSITE.
- Subject
to Condition F.3 the Company confirms that whilst it shall use its
reasonable efforts to ensure that all the information on this website is
correct at the time it was published, the User acknowledges that the
information in question may not be comprehensive, there may be other
issues that the User should be aware of to place that information in
context and that the information in question may no longer be up to date.
- The
User acknowledges that it is primarily the responsibility of Users to
ensure that all the messages posted by them on this website are factually
accurate, and that the Company is only obliged to moderate anonymous
postings (see Condition E.4).
SECTION F - GENERAL MATTERS
Acting on Instructions
1. The User
acknowledges that the Company and other Users shall act upon any information or
instructions that the Company reasonably believes comes from the User and the
Company shall not be liable to the User in those circumstances. Unless fraud
can be shown to have taken place, the Company shall regard the use by any
person of the User's username and password as confirmation that the User has
consented to that person accessing this website (see Condition G.2(b)).
Fraud and Misuse
1. The User confirms to
the Company that the User shall at all times:
a. provide the Company
with accurate information regarding the User's identity; and
b. keep any of the User's
usernames and passwords that are needed to access any part of this website
strictly confidential and the User shall ensure that those usernames and
passwords are not used by any unauthorised person.
- The
User shall immediately notify the Company by email at abuse@thomasmurraycommunity.com:
c. if the User believes
that any unauthorised use has or may be made of the usernames or passwords
referred to in Condition G.2(b); or
d. if the User suspects
or is aware of any other possible abuses of the website including (but not
limited to) any unauthorised access.
- The
User confirms to the Company that the User shall not abuse or otherwise
improperly use or exploit this website and that the Company may
immediately terminate this Agreement if the User does so.
Verification
- The
User shall be responsible for carrying out such checks that it believes
are necessary to ensure that all emails, or other electronically-recorded,
or transmitted, data, that it receives from the Company and any Third
Parties are free from computer viruses.
- The
User acknowledges that the Company shall not make any investigations
regarding:
a. the contents of the
website of any Third Party; or
b. the quality of the
services provided by any Third Party.
The User should
therefore make its own enquiries in this respect prior to entering into any
agreement with a Third Party.
- The
User acknowledges that it shall be the User's responsibility to make any
enquiries into the financial and other circumstances of a Third Party that
the User believes are necessary, and the User also acknowledges that it
shall be up to the User to obtain such legal or other professional advice
in its dealings with a Third Party as it thinks fit.
- The
Company shall make reasonable efforts to confirm the identities and (where
relevant) the professional qualifications of each User.
Charges and Payment
- In
those circumstances in which they may be levied, the User shall be liable
to pay all the Company's fees or charges on the due dates and time shall
be of the essence for all payments due to the Company under this Agreement
and in respect of the performance of the User's obligations generally.
- Unless
stated to the contrary in these Conditions or on this website, all sums
that are to be paid to the Company by the User shall be payable in advance
and they shall be exclusive of all applicable taxes and duties.
- Without
prejudice to any of its other rights and remedies the Company may charge
the User Interest (on the basis provided for in the following Condition)
on any sums that are not paid to the Company on the due date.
- Interest
may be charged by the Company under the previous Condition from, and
including, the date on which the payment in question fell due to the date
on which that payment (including all applicable Interest) is paid in full,
and Interest shall be charged on a daily basis with reference to a year
consisting of 365 days, with all unpaid Interest compounded monthly.
- No
sums paid to the Company by the User shall be regarded as paid until they
are received by the Company in cleared funds.
Prohibitions and Good Faith
- The
User confirms to the Company that:
- the
User shall not provide the Company with any information or any materials
of any sort that infringe the intellectual property or other rights of
any other person; and
- none of the
information or material supplied by the User to the Company shall be
libellous, obscene, or abusive nor shall it breach any law or regulation
or give rise to any legal claim of any sort.
- The
User acknowledges that the success of the Service depends upon the
restrictions set out in Conditions G.16 and G.17 being strictly observed.
- The
User shall not:
- а1. make any material misrepresentations
in any information or materials submitted to the Company or a Third
Party; or
- а2. use the
Service for the purpose of building up a database of businesses that the
User or a third party intends to exploit for any commercial purpose.
- The
User confirms that in its dealings with Third Parties the User shall:
- аact in good faith and in a businesslike
and courteous way; and
- аkeep strictly
confidential all confidential information disclosed to them by the other.
Indemnity
18. The User shall immediately
indemnify the Company against all proceedings, fees, expenses, payments,
liabilities, injury, costs and damages arising out of:
а1. the breach by the
User of any of its obligations under this Agreement; and
а2. any warranties,
representations, confirmations or acknowledgements given by the User that prove
to be untrue.
Email Notifications
- The
Company shall send the User the following information by email to the
Specified Email Address:
- any
future changes to the Company's charges or fees; and
- any
additional terms and conditions or any changes to the way in which the
Service shall be run
In any email of this sort the
Company shall give the User not less than 14 days prior notification of the
changes in question which shall also be posted on the this website.
- It
shall be the UserТs responsibility to ensure that all emails that are sent
by the Company to the User at the Specified Email Address are received by
the User and read within two days of their receipt. In the event that any
email is correctly addressed to the User and the Company is notified by its
email service that the email has not been delivered, the Company's
obligations to the User under Condition G.19 shall be limited to
attempting to resend that email on a single further occasion and (if
delivery cannot be effected) the User shall be deemed to have knowledge of
the matters to which the email related because they are also posted on the
this website.
- In
the event that the User reasonably believes that any of the changes
notified to the User under Condition G.19(b) are
materially prejudicial to the User, the User may terminate this Agreement
within the notice period in question, and the User shall not be bound by
the notified changes prior to the termination of this Agreement.
- Except
as provided for in clause G.19 and G.20 or as specified on this website or
in any correspondence from the Company, all other notices that are sent by
either party to the other shall be sent by both email and one of the other
methods for service noted in Condition G.46.
Use of Data
23. The User confirms that the
following information may be posted on the this website :
a. the User's identity
as one of the entities that has subscribed to the Service; and
b. any information
submitted by the User that is reasonably intended for inclusion on the website.
24. The User confirms that:
a. the User shall
comply with all relevant Guidelines when posting any information on the this
website; and
b. all details submitted
by the User for inclusion on this website may be read by any other User unless
the User has expressly instructed or agreed with the Company to the contrary.
25. The User confirms that in
order to enable Company to improve and/or market the Service:
a. the Company may
produce statistics or summaries relating to the use of the Service; and
b. аthe Company may
contact the User by email, telephone or post for feedback regarding the Service
including any ways in which it might be improved.
26. None of the information
referred to in Condition G.25 shall identify the User, and the User confirms
that the Company may also contact the User for the purposes stated in Condition
G.31.
27. The Company may remove any
materials posted on this website that:
a. infringe any of the
provisions of Conditions G.2(a), G.14, G.16 and G.17; or
b. the Company reasonably
believes are unsuitable or inappropriate for any other reason.
28. Subject to the provisions
of the following Condition the Company confirms to the User that it shall keep
all information submitted by the User confidential subject the following
Condition.
29. It is agreed by the User
that:
a. the Company may use
the information disclosed by the User for any purposes that have been specified
in this Agreement or in any Guidelines; and
b. the confidentiality
obligations in Condition G.28 shall not apply to any information falling within
one of the general exceptions noted in Condition G.30 below.
30. The exceptions referred to
in Condition G.29 are the following:
a. any information
which comes into the Company's possession from someone other than the User with
no obligation of confidentiality attached;
b. any information
which is disclosed by the Company with the prior approval of the User;
c. any information
which is either in the public domain or comes into the public domain through no
act or omission by the Company; and
d. any information which
should properly be disclosed to any legal or regulatory body.
31. The Company may introduce
optional additional services or facilities during the course of this Agreement
and the Company may notify the User of any additional services or facilities of
this sort that it intends to offer.
Termination
32. This Agreement may be
terminated by the Company:
a. if the User shall
fail to pay any sum to the Company on the due date;
b. if the User shall
materially breach any term of any agreement with a Third Party;
c. under the provisions
of Condition G.4;
d. if the User shall
breach the provisions of Conditions G.2(a), G.14, G.16 or G.17, and by the User
under Condition G.21.
33. Without prejudice to the
previous Condition either party may terminate this Agreement:
a. if the other commits
a breach of this Agreement and (in the case of a breach capable of remedy)
fails to remedy that breach within 14 days of receiving a written notice
requiring it to be remedied;
b. if an encumbrancer takes possession or a receiver is appointed
over the property or assets of the other;
c. if the other makes
any arrangement with its creditors, or ceases to carry on business, or is wound
up or dissolved; or
d. if anything equivalent
to any of the matters specified in sub-clauses G.33(b) or G.33(c) should occur
in relation to the other party in any jurisdiction.
34. The termination of this
Agreement shall not limit the enforceability of any of the rights or
obligations of the parties that accrued before the termination date.
35. The Company shall be
entitled to delete from this Web site and its records any information of any
kind submitted to the Company by the User and it shall also be the User's
responsibility to keep a copy of all the information that is submitted to the
Company as a back-up copy and for its own records.
Disputes
36. If any dispute arises out
of this agreement the parties will attempt to settle it by negotiation. A party
may not serve a TMC notice or commence arbitration proceedings until 21 days
after that party has made a written offer to the other to negotiate a
settlement to the dispute.
37. If the parties are unable
to settle any dispute by negotiation within 21 days of the written offer to
negotiate has passed, the parties will attempt to settle it by mediation in
accordance with the Centre for Dispute Resolution (CEDR) Model Mediation
Procedure ("the Model Procedure").
38. To initiate a mediation a party must give notice in writing ("a TMC
notice") to the other party to the dispute requesting a mediation in
accordance with clause G.40. A copy of the request should be sent to CEDR.
39. If there is any point on
the conduct of the mediation (including as to the nomination of the mediator)
upon which the parties cannot agree within 14 days from the date of the TMC notice,
CEDR will, at the request of any party, decide that point for the parties,
having consulted with them.
40. The mediation will start
not later than 28 days after the date of the TMC notice.
41. Neither the User nor the
Company may commence any court proceedings or arbitration in relation to any
dispute arising out of this agreement until they have attempted to settle it by
mediation and that mediation has terminated.
42. Neither the User nor the
Company may terminate the mediation until each party has made its opening
presentation and the mediator has met each party separately for at least one
hour and following that paragraph 14 of the Model Procedure will apply.
43. If the parties have not
settled the dispute by the mediation within 42 days from the date of the TMC notice,
the dispute shall be referred to, and finally resolved by, arbitration under
the Rules of the London Court of International Arbitration which Rules are
deemed to be incorporated by reference to this Condition.
44. The Law of the arbitration
or mediation shall be English Law and all proceedings shall be conducted in
English and the place of arbitration shall be London, England.
Assignment, Notices and
Governing Law
45. This Agreement may not be
assigned by the User without the Company's prior written consent.
46. Except as provided for in
Conditions G.19 and G.20 all notices proceedings or other formal documents to
be served by either party on the other shall be delivered by hand or by
recorded delivery to the other's address being either:
a. (in the case of the
User) the address given in the User's registration form; and
b. (in the case of the
Company) its registered address
or (in either case) to any
other address for service that is subsequently notified in writing by the party
in question and notices shall be deemed to be received upon delivery.
47. This Agreement shall be
governed by the laws of England
and the parties submit to the non-exclusive
jurisdiction of the English Courts.
