1.    Definitions – (The following definitions shall apply to all items and pages of the Account Opening Form)

 

EFG or Company:  means EFG Hermes Kenya Limited, a Kenyan stock broker in the Republic of Kenya, licensed to practice the activity of Stockbrokerage and regulated by the Kenyan Capital Markets Authority under license number License No. 105 with its principal office at Orbit Place, 8th Floor, Westlands, Nairobi and P.O. Box 349 - 00623 Nairobi.

Client: means the natural person holder of the account, his/her agents, other minors’ guardians and representatives authorized to manage the account.

Force Majeure: means any event due to any cause beyond the reasonable control of The Company, such as restrictions on convertibility or transferability, requisitions, involuntary transfers, unavailability of communications system, sabotage, explosion, acts of God, civil commotion, strikes or industrial action of any kind, riots, insurrection war or acts of government.

CMA: means the Capital Markets Authority which is the relevant authority supervising all activities in the capital markets in Kenya.

NSE: means The Nairobi Securities Exchange which is a securities exchange licensed as a self-regulated organization by the CMA in Kenya.

CDSC: means Central Depository and Settlement Corporation, the licensed settlement, clearing and central depository company in Kenya.

Agreement: means the terms of business in this Agreement under which the Company offers services to the Client or the terms which are included in any supplement to this Agreement which may be agreed upon with the Client in writing.

Securities: mean any of the following sold or purchased by the Company pursuant to this Agreement:

1. shares in companies and other Securities equivalent to shares in companies, partnerships or other entities, and depositary receipts in respect of shares;
2. bonds or other forms of securitized debt, including depositary receipts in respect of such Securities;
3. any other Securities giving the right to acquire or sell any such transferable Securities or giving rise to a cash settlement determined by reference to transferable Securities, currencies, interest rates or yields, commodities or other indices or measures.

Services: means general brokerage services in securities and the provision of any related services, information and research.

Business Day: means any day on which the Exchange is operating.

Instructions: means any and all instructions (including consents and notices) received by the Company from, or reasonably believed by the Company to be from, the Client, in accordance with this Agreement.

2.    Securities Exchange or Market

The Company shall operate under the regulations of the CMA in Kenya. All local transactions and dealings shall be carried out in accordance with the Laws and regulations governing and directing dealings in Securities on the NSE. All dealings with other securities exchanges shall be carried on by financial intermediaries duly licensed at the relevant stock exchanges.

3.    Commissions Charges and Fees

Commissions, charges and other fees, expenses and terms indicated in the commissions and fees details shall be an integral and inseparable part of the present Agreement and the Client undertakes to bear them in full.

4.    Conflict Of Interests

• The Company hereby notifies the Client that:
  • The Company, the persons related to it and other sister companies provide several and various financial services for a wide range of Clients and companies similar to Hence, it is possible under the different circumstances applicable to such parties that there might appear to be conflict of interests in connection with a particular transaction;
  • EFG-HERMES Holding A.E., the majority shareholder of EFG-HERMES Frontier LLC, the sole shareholder of the Company, invests in listed Securities on the various Stock Exchanges in different jurisdictions either by itself or through its affiliates by participating in conducting a number of Securities offerings.
• However, the Company places the Client’s interest in the first place; accordingly, the Company would like the Client to put this into his/ her consideration at the The Client’s approval to this provision and his/her execution of this Agreement shall be considered an acceptance on his/her part, a declaration of his/her knowledge of the probable presence of conflict of interests and a written approval by the Client to deal with the Company in spite of the foregoing. The Client reserves the right to request to see the Company’s conflict of interest policy.

5.    Confidentiality Of Accounts:

 5.1. The Company shall exert its best efforts to maintain all particulars, information and documents of the Client’s account to be kept strictly confidential within the limits of and as permitted by the law, provided that The Company may, pursuant to the regulating provisions and laws regulating its activity, to disclose particulars and information regarding the Client to the concerned regulatory supervisory authorities, or to the extent such disclosure is necessary to enable the services to be provided as contemplated by this Agreement. The Client hereby acknowledges that he/she approves the use by the Company of his/her documents kept with Herms, in case of any dispute arising between them.

6.    Research:

• Research may be sent to the client by the Company or its affiliates from time to time for the purpose of his/her information and shall not be considered as an advice or offer for purchase or sale of The Client should use his/her own investigation and analysis in making investment decisions.
• The Company will take the reasonable due diligence to ensure the research is true and not misleading at the time it is published; however the Company is not making any warranty about its accuracy or
• If the information has been changed after the client received the research report, the Company will not be responsible to communicate the change to the client, and will not have any responsibility or liability for any decision the client made according to the un-updated report.
• The client hereby undertakes that information obtained from research reports are given with the company’s good faith and the company will not be responsible for any losses that may occur to the client as a result of using such reports.
• The Company estimations, projections, forecasts and opinions in our research will be based on assumptions; we consider to be reasonable at the time we issue the research.

7.    Correspondence, Notices And Advices: 

• The Company shall notify the Client of his/her executed orders by (Telephone, Fax, Email, Bloomberg, or other means of written communication) and the Client shall be deemed to have consented what is mentioned in the notice, if he/she does not object within (2) two Business Days at the latest from the date of the execution notification sent by the Company.
• The Company shall on a monthly basis send the Client’s account He/She shall be considered to have finally approved what is mentioned in the statements in case he/she does not object within (15) fifteen days at most from the date of receiving the relevant account statement.
• The Client shall be deemed to have acknowledged and approved of the executed transactions to his/her account in any of the following cases, in which case he/she may not object to such transactions it thereafter:
  • If the order was issued by the Client (or his/her representative acting on his/her behalf by a notarized power of attorney or official document) in accordance with the method of receiving orders provided in the Account Opening Form.
  • If the Client (or by his/her representative under a notarized power of attorney or any official document) ratifies the contract note issued by The Company.
  • If the Client (or by his/her representative acting on his/her behalf by a notarized power of attorney or any official document) ratifies the account statement sent to him/her in which the details of the transactions executed in the account and the amounts thereto.
• The Client hereby declares that if he/she sends any orders or correspondence signed by him/her (or by his/her representative acting on his/ her behalf by a notarized power of attorney or any official document) through fax, shall be considered as originals of which he/she shall be fully responsible for their The Company shall be exempted from any responsibility or liability whatsoever in relation to such orders or correspondence.
• The Company shall send all correspondences at the correspondence mailing address indicated by the Client in their personal details in Page (1) of the Account Opening Form and thus such correspondence shall be considered as if they were delivered personally to the Client who shall be responsible to notify the Company in writing in case of changes to his/her mailing address.

• The contract note issued by the Company in writing to the Client shall be considered an approved evidence for the It shall be payable promptly on the date the contract note is issued to the Client, under the provisions of the Capital Markets Act 485A and its subsequent Regulations and the rules in force at NSE and CDSC.
• n case of any objections or complaints from the Client, it shall be sent to the Company Compliance The Company shall endeavor to the best of its ability to deal with all the complaints received from the client in a fair and prompt manner.

8.    Withdrawing and depositing Cash and Cheques

• The Client shall be given a deposit/remittance slip at the bank for any sum deposited cash into Company Client Bank The Client shall present the deposit slip to the Company and shall be issued a receipt thereafter. The Company shall not allow cash withdrawals from the Company Client Bank account by the Client or any other person acting on behalf of the client. No cash shall be handled directly by the Company or its representative.
• The Client may deposit in the Company’s client bank account cheques drawn on other banks supervised by the Central Bank of Kenya (“CBK”) (a list of the other banks shall be provided if requested).
• Likewise, no remittances or fund transfers incoming or outgoing to the Client’s accounts with the Company shall be accepted unless through the accounts of the same Client.
• The broker is obligated to make a Suspicious Transaction Report if the matter seems out of the ordinary conduct of business for the Client.
• The Company shall promptly pay the Client any amounts received for the sale of securities and not later than 4 working days from the date of request by the Client which will not be earlier than the settlement date unless instructed otherwise by the Client.
• The Client is entitled to receive any interest earned on funds held on their behalf by the Company.

9.    Client Orders:

• The Company shall execute Securities sale and purchase transactions in the name and for the account of the Client.
• The Company shall receive orders from the Client (or his/her representative acting on his/her behalf by a notarized power of attorney or any official document) by any of the following means Written, email, Fax, Bloomberg and/or as transmitted through the Company’s online applications.
• The instructions and orders communicated to the Company either by the Client or by his/her representative may be amended or revoked, unless such instructions/orders or part thereof have been executed.
• The Company shall execute the orders given by the Client or his/her representative according to their instructions and the Client declares that he/she is fully responsible for the orders communicated by him/her or by his/her representative without any liability on the Company.
• The Client shall comply with the order once it was issued from him/her or his/her representative until the order validity period expires or the Company is told to cancel it before execution.
• While accepting an order, the Company shall inform the Client of all constituent parts of the order which include but are not limited to the type of security, security name, quantity, price, trade direction, validity and date of order prior to execution and the Client shall give a written confirmation as evidenced by the instructions issued to the Company.
• The Company shall exert the maximum degrees of due diligence in executing of the Client’s However, if the Company could not execute all the quantity set out in the Client’s order, the Client shall not be entitled to refrain from accepting the quantity executed for his/ her account; unless there is an explicit stipulation in the Client’s order that provides otherwise.
• It is agreed that the Company may, in its sole discretion and without giving reasons, decline to accept any particular instruction/order from the Client in relation to a particular In which case, the Company will notify the Client as soon as practicable and the Company shall not be liable for any losses or expenses the Client may incur, if the Company declines to accept any such instruction/order.
• Where the Client has opted to open a nominee account with the Company, subject to the Company’s discretion, the securities shall be held in the name of the Company or its affiliate but the underlying ownership of the assets of shall remain with the All the terms and conditions in this Agreement apply to nominee accounts.
• Receipt of securities in the Client’s CDS account at the depository shall serve us title to the securities therein and this shall be evidenced by a certified portfolio valuation statement of securities issued by the Company.

 

10.    Default in Settlement:

• If the Client fails to meet any his/her said obligations mentioned hereunder or those stipulated by the law, he/she shall be obliged to indemnify the Company against all moral and material damages and detriments (including reasonable legal fees) and to keep the Company harmless against liabilities for any claims, demands or actions resulting from the foregoing, in addition he/she shall be obliged to indemnify the Company for the costs that it had incurred as well as any fines or penalties collected by the CDSC Guarantee Fund as a result of the Client being in default with respect cash settlement or with respect to the delivery of the Securities relative to the executed transactions .
• In case of nonpayment of the amount of the Securities purchased for the Client’s account within (2) two days from the date of the notice given to him/her of the executed The Company shall send a written notice to the Client which states that if the Client fails to pay the amounts due by him/her to the Company within (3) three Business Days, such failure shall be considered an authorization by the Client to the Company to sell the quantity whose value was not settled by him/her. In case the proceeds of sale of the Securities were insufficient to cover the debited balance of the Client, the Company shall be entitled to have recourse against the Client’s account for an amount up to the remaining uncovered outstanding debited balance whether such recourse against the Client be as a result of insufficiency of funds, due to his/her issuing cheques for an amount greater than the balance or for any other reason.
• In case the Client has more than one account with the The Company shall be entitled to cover his/her debited account by deducting from his/her other credit accounts without having to refer to him/her. In addition, the Company shall be entitled to transfer Securities and/or cash to and from the Client’s different accounts held with the Company, as it deems appropriate at it sole discretion and without referring to the Client, to cover any indebtedness of the Client or for covering the purchase of Securities.

 

11. Liabilities:

• The Company is responsible for the performance of only those duties as are expressly set forth herein, including the performance of any instruction given that is consistent with this It is agreed that the Company shall have no implied duties or obligations except as those explicitly set forth into this Agreement.
• The Company will not be liable or responsible for any loss or damage (including without limitation, expenses, costs and liabilities for any claims, demands or actions) incurred by the client in connection with this Agreement or any other agreement the Company enters on behalf of the Client, unless it arises directly from the fraud or willful default of the Company.
• The Company will not be responsible for any failure to perform any of its obligations if such performance would result in it being in breach of any law, regulation or other requirement of any governmental or other authority in accordance with which it is required to act (including any rules or practice of the exchange or any regulator) or if its performance is prevented, hindered or delayed by a Force Majeure event. In such case the Company’ obligations will be suspended so long as the Force Majeure event continues.
• Any recommendations or advice from the Company is done pursuant to the available information with the objective of serving the It shall not be considered guarantee to the value of the security or its future performance, where the fluctuations in prices may lead to profit or loss for which the Company shall not be responsible. In addition, the Company shall not be held responsible for the transactions that the management of the Stock Exchange or the Capital Markets Authority cancels, provided that the reason for cancelation would not be attributable to the Company; without prejudice to its responsibility to exert the best efforts of care.

 

12.    Term, and Termination:

• The term of this Agreement (Account Opening Form) is one year only, commencing on the date on which the Company approves opening the account and shall be renewed automatically for similar period(s) unless either party notifies the other party of his/her desire not to renew the Agreement at least (21) twenty-one days before the expiry of its original or renewed
• Either party shall be entitled to terminate this Agreement at any time by virtue of (21) twenty-one days written notice to the other party, provided that any suspended issues between the parties would be settled within two weeks from the date of the termination . In such case, the Client hereby authorizes the Company to settle the remaining or suspended transactions and also guarantees to provide sufficient assets with the Company for this purpose.
• At any time after the termination of this Agreement, or after the Company has determined, at its sole discretion, that the Client has not performed or may not be able in the future to perform any of its obligations under this Agreement or that there has been a material adverse change in the Exchange or the economy, the Company is authorized by the Client to undertake any of the following actions, in any manner that the Company considers necessary or appropriate to cover, reduce or eliminate its loss or liability under or in respect of any contracts, positions or commitments:

 

• treat any investment transaction that is then outstanding as having been canceled and terminated;
• sell any of the Client’s Securities to realize sufficient funds to cover any outstanding amount; or
• close out, replace or reverse any transaction or enter into any other transaction, or refrain from taking

 

13.    Recognition of risk:

• The Client is aware of the fact that Securities purchasing and selling involve risk by their nature and that the value of the assets invested in the securities exchange can depreciate from time to The Client shall bear the risk in full and the Company shall not be responsible for any losses incurred.
• The Client undersigned, hereby confirms his/her desire and acceptance to deal in unlisted or delisted Securities through Over The Counter (OTC) mechanism, and he/she is the fully aware that these Securities traded through the OTC mechanism are Securities that are unlisted or were delisted on the NSE for failing to comply with the listing rules, procedures of listing and continuance of listing and disclosure at the NSE; the Client also acknowledges that he/sh is fully aware that dealing on delisted Securities is subject to non-disclosure risks , and confirms that the Company has informed him /her of these risks and he/she intend to deal in these Securities without any further legal liability on the company.

 

14.    Disputes and differences:

Disputes arising out of, or in relation to this agreement shall be settled by arbitration pursuant to the Arbitration Act (1995) Act No. 4 of 1995 Cap 49 Laws of Kenya (the “Rules”). The arbitration shall take place in Nairobi, and shall be conducted in English before a panel of three arbitrators appointed in accordance with the aforementioned Rules. The arbitration award shall be final, binding and subject to no appeal, and shall cover all the issues in dispute including the allocation of costs. In all cases the Company shall send a copy of the reconciliation agreement or the arbitral award, as the case may be, settling the dispute to the CMA.

 

15.    General Provisions:

• The provisions of the Capital Markets Act Chapter 485A, its regulations, its decisions, all other relevant laws shall apply to this agreement
• The Company retains the right to modify or amend this Agreement and/or add any additional terms and provisions without reference to the Client provided that such changes are not in contravention with applicable laws and the Client would be informed with such changes in advance and Any notices sent or delivered to the address indicated at the forefront of this Agreement shall be considered correct and productive of their ef Notwithstanding the foregoing, it is agreed that in case changes occurred to the relevant laws, regulations or practices of the relevant market in connection with any of the provisions of this Agreement and where such changes require amending of this Agreement or any of its Annexes, the Company shall be entitled at any time to effect such necessary changes immediately without prior notification and the Client shall be responsible for the implementation thereof without any liability on the Company.
• The Client retains the right to ask for information on the experience, qualifications and disciplinary history of the Company.
• This Agreement and the Client’s rights and obligations may not be assigned by the Client, in whole or in part, without the prior written consent of the Notwithstanding the foregoing, the Company may assign this Agreement or any of its rights or obligations under this Agreement to any affiliate or to any successor company (whether by merger, consolidation or otherwise) at any time without obtaining the consent of the Client. The rights and obligations of the Company shall inure to the benefit of the Company’ successors and assignees whether by merger, consolidation or otherwise, and shall be binding upon the executors, administrators, successors and assignees of the Client.

 

16.    Client’s Declarations and Covenants:

 

• The Client hereby acknowledges that he/she fully understands and agrees to comply with the provisions set out in the Capital Markets (Take-over and Mergers) Regulations, 2002 of the Capital Markets Act In addition, the Client agrees to notify The Company in the event of breach of any of such provisions and to indemnify The Company for any costs, losses, charges, fees or expenses incurred by The Company and to keep The Company harmless against liabilities for any claims, demands or actions as result of such breach without any responsibility on The Company.
• The Client acknowledges that he/she fully understands and agrees that all his/her telephone calls and other communications with The Company may be recorded for business purposes.
• If the Client is a member of the board of directors or one of the employees of a publicly listed company and wishes to execute a sale or purchase transaction with respect to the shares of such company which will result his/her ownership to exceed 3% of the company’s share capital, he/she shall comply with notifying the Company, the issuing company and the competent authorities concerned to this effect.
• The Client shall be under obligation to have his/her signature officially authenticated (signature validity certification) or to personally sign in presence of the representative of the Company. This provision shall apply likewise to the Client’s representatives.
• As an exception to clause 4 above, in cases where the client submits this account opening application through electronic means or via our online applications, the Client consents and agrees that his/her submission of soft copies of the executed Agreement indicates his/her approval or acceptance regarding the terms and conditions of this Agreement as if he/she actually submitted the original copies of the Agreement signed in ink to the Company. Further, he/she agrees that no certification authority or other third party verification is necessary to the validity of the submitted soft copies of the executed Agreement; and that the lack of such certification or third party verification will not in any way affect the enforceability of the resulting contract between him/her and the Company.
• In case of the Client’s death, the Company shall not be responsible for any instructions sent to it by any of his/her representatives until the Company is notified in writing of the Client’s death.
• The Client declares that he/she is the original owner and the sole beneficiary of opening this account and all sources of his/her moneys are The Client shall comply with furnishing The Company with any additional data that it may request of him/her to determine the sources of his/her funds invested in purchasing Securities pursuant to the provisions of the Proceeds of Crime and Anti-Money Laundering Act, (POCAMLA) in connection with Anti-Money Laundering, its regulations, guidelines and all their amendments and pursuant to any future amendments of such laws and regulations as well as the guidelines prepared by the Authority in application to the principle “Know Your Client (KYC)”. The Client also declares that he/she is responsible for all liabilities and legal consequences in case anything otherwise is discovered. The Client shall also be under obligation to periodically update his/her KYC form , information and legal documents requested by the Company, in order to comply with its obligations under the aforementioned regulations and the NSE membership rules. The Client acknowledges and understands that failure to comply with this obligation shall be considered a breach of this Agreement and will entitle the Company to suspend his/her account as it may deem necessary without prejudice to its right to claim indemnity as applicable.
• The Client shall comply to inform the Company in writing of any amendments to any of the data hereunder and that may be introduced into any of the data mentioned in this He/She hereby declares his/her responsibility for the accuracy and genuineness of the documents submitted by him/her to the Company.
• In the event of a foreclosure, the Client fully indemnifies the Company for any loss, expense, cost or damage where the Company acts on the express instructions of the lendor seeking to recover its monies due to an alleged default.
• The Client hereby declares that he/she has read all the items and terms and conditions of this Agreement mentioned above and that he/ she finally agrees to the contents mentioned hereto.

 

General Conditions

By filling and signing this form, I hereby authorize EFG Hermes Kenya or any of its affiliate companies to accept and execute my bank transfer requests, in writing, online or by any other relevant services to transfer all or part of my available credit balance as per their books into my bank account listed within this account opening form and deduct all bank charges incurred without any liability on EFG Hermes Kenya.

EFG Hermes Kenya reserves the right not to process or delay any transfers without any liability attaching to it, if the information given is incomplete, or not sufficiently clear, or does not meet any act, statutory instructions or order of financial institution, authority or governmental agency.

1.    Introduction

Whereas the “Client” has executed an agreement with the EFG Hermes Kenya Limited (referred to hereinafter as “Hermes” or the “Company”) for opening an account for securities’ trading by virtue of which the Company executes the Client’s instructions to for the purchase or sale of securities (the “Account Opening Agreement”).

Whereas both parties desire to develop their relationship, where the Client is aware that this Appendix revolves in existence and nonexistence with the Account Opening Agreement, so that the Client may not conclude such Contract with the Company unless a securities account opening agreement is concluded with the Company, where this Appendix is considered complementary and supplementary thereto. All the terms and provisions of the Account Opening Agreement shall apply hereto in case this Appendix does not stipulate otherwise.

• The abovementioned Preamble shall be considered integral part of this
• This Appendix shall be governed by the Kenyan
• The provisions and terms of the Account Opening Agreement signed between the Client and the Company previously referred to shall apply whenever there is no specific provision mentioned in its concern in this

 

2.    Terms of Agreement:

• The Client hereby acknowledges that he/she chooses the e-mail address set out hereinafter as his/her elected domicile for receiving the periodical account statements and notifications from the Company in relation to the securities’ trading account of the Client in the Company. The Client further acknowledges and confirms that he/she does not wish to receive his/her account statements in the paper format and agrees to receive his/her account statements at the e-mail stipulated below. The Client acknowledges and declares that all account statements and notifications sent to the e-mail address stipulated herein shall be legally valid, effective and binding to him/her.
• The Client acknowledges and declares that the Company’s obligation to send the Client periodical account statements according to the Account Opening Agreement shall be considered fulfilled in full immediately upon the Client’s account statements are sent to the e-mail stipulated below in this In this case, the Company will be under no obligation to send the account statements or notifications in paper format.
• In case the Client does not receive his/her account statement within the [first week of each calendar month] at the e-mail stipulated in this Appendix for whatever reason, he/she must promptly notify the Company of the same in writing via registered mail with acknowledgment of receipt. The Client acknowledges and declares that if no such written notification of non-delivery of the Account Statement was sent to the Company until the 15th day of the relevant calendar month, it is to be considered an implied endorsement by the Client of receiving the relevant Account Statement without any liability on the Company.
• The Client acknowledges and declares that sending the account statements related to the account of the Client at the e-mail address stipulated in this Appendix does not, and shall not be considered under any circumstances to, violate the Company’s obligation to keep the Client’s information and data confidential according to the Account Opening Agreement executed with the Client and pursuant to the Capital Markets Act 485A and its subsidiary The Client further acknowledges and declares that the security and safety of the e-mail log-on information and all the information and data of the Client’s e-mail is the sole and exclusive responsibility of the Client without any responsibility on the Company in any respect.
• The Client acknowledges and declares that the Company is not, and shall not under any circumstances be, responsible for any damages or losses incurred by the Client except for what resulted from the willful misconduct or fraud of the Company or its representatives.
• In case the Client subsequently wishes to revert to receive the account statements in paper format, the Client must notify the Company in writing via registered mail with acknowledgment of receipt with his/her wish to terminate this Appendix and receive the account statements in paper format at least 30 days before the In this case, this Appendix shall be terminated immediately at the end of the notice period mentioned above without any violation to the validity and legality of all account statements or notifications sent to the e-mail of the Client during the term of this Appendix and without prejudice to any of the Client’s undertakings in this Appendix.
• The Client acknowledges and accepts all the risks that may result of the use of internet and the information technologies related Those risks include but not limited to the following:
  • Third party intervention, which includes the interception of the mails and re sending them under false pretenses (such as persons who are capable of hacking a website and manipulate it and persons who are capable of tracing website traffic without manipulation). Third party interference also includes programs and systems (including the viruses, trojans horses and spywares …etc.) which may interfere or sabotage or jam communications and which may also cause serious damage to the Client’s information technology systems including software and hardware;
  • disruption of the communication network which may include interrupted breakdowns, delays and outages;
  • internal encroachments to the Client’s computer systems by the Client’s employees (in the event the Client is a corporate entity) and other delegated users (in all cases);
  • negligence in dealing with the sensitive information by persons using the computer systems of the Client or the information stored therein or printed or extracted by any other means;
  • possibility that encrypted systems may be subjected to brute force attacks or other forms of attack; and
  • any other risks resulting from the usage of the internet.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

1. Introduction

 

Whereas EFG Hermes Kenya Limited (referred to hereinafter as “EFG” or the “Company”) provides the service of online trading in securities for its Clients in accordance with the license granted by the Capital Markets Authority in Kenya (“CMA”) which allows the Clients of the Company to inquire about transactions and prices of the Nairobi Securities Exchange (“NSE”). Whereas the Company also allows its Clients to inquire about their respective balances in cash and securities kept with the Company. In addition, this system allows Clients to trade whether by sale or purchase in the NSE or any other capital market covered through the Company. Whereas the Client has executed an agreement with the Company for opening an account for securities trading by virtue of which the Company executes the Client’s instructions for the purchase or sale of securities (the “Account Opening Agreement”).

Both parties desire to develop their relationship, where the Client is aware that this Annex revolves in existence and nonexistence with the Account Opening Agreement, so that the Client may not conclude such Contract with the Company unless a securities account opening agreement is concluded with the Company, where this Annex is considered complementary and supplementary thereto. All the terms and provisions of the Account Opening Agreement shall apply hereto in case this Annex does not stipulate otherwise.

• The abovementioned Preamble shall be considered integral part of this
• This Annex shall be governed by the laws of the Republic of
• The provisions and terms of the Account Opening Agreement signed between the Client and the Company previously referred to shall apply whenever there is no specific provision mentioned in its concern in this Annex.

The Company reserves the right to introduce new fees or implement changes to existing fees, including but not limited to annual/monthly membership fees and service fees, at such times and in such manner as it may in its sole discretion determine except as limited by applicable law. The Company will provide the Client with one month’s notice of any such fee introduction or change (and such notice will include the fees themselves) and the client hereby authorizes the company to directly debit his/her account with such fees.

 

2.    Access to the Company’s website and/or mobile applications (hereinafter referred to as “Applications”):

 

• The Client hereby acknowledges that in order to be able to access and trade online through the Company Applications, the Client must sign and accept all the terms and conditions stated herein in this The Client also undertakes, by no later than (2) two business days from the execution of this Annex, to log-on to the Applications of the Company (https://kenya.efghermesone.com/ or EFG Hermes ONE Kenya) or and to register his/her account by entering all required data prompted by the application’s interface in order to identify the user (including - but not limited to - the Client’s account number with the Company, the P. O. Box number, cell phone number....etc.). The data entered by the Client must be consistent and matching with the data provided to and recorded with the Company, in order for the Client be granted a password to enable him/her to log-on and access the online trading system. The password to the Client’s logon account shall be sent to the Client at his/her e-mail address set out in the Account Opening Agreement or, where possible, via SMS on his/her cell phone number recorded with the Company.

• Where the Client seeks to open an account with the Company online through the Company Applications, the client is required to undertake the account opening process by entering required data prompted by the application’s interface as well as submit all documents including the executed Account Opening Agreement, this Annex and all required identification documents indicated in the Account Opening Agreement either through the Company Applications or through our official email The password to the Client’s logon account shall be sent to the Client at his/her e-mail address set out in the Account Opening Agreement or, where possible, via SMS on his/her cell phone number recorded with the Company.
• The Client hereby declares that the Company’s non-receipt of a written notification from the Client that he/she did not receive the log-on password within (5) five business days from the date of execution of this Annex shall be considered implied and final declaration by the Client that he/she has received his/her log-on password without any liability on the Company.
• The Company may notify the Client requiring additional data to be provided by the Client to the Company before accessing the Applications.

 

3.    Terms of Agreement 

The Client hereby undertakes to adhere to the following:

• The Client is aware and fully knowledgeable with all the terms and conditions of this Annex and he/she undertakes to comply in full with those terms and conditions
• The Client acknowledges that he/she is aware that his/her subscription in this service stated herein shall be carried out via the Applications of the Company and accessed from the Client’s personal computer or mobile devices via clicking acceptance on the automatic registration form and filling it in with all the required The Client shall not be entitled to object this matter as long as the procedures have been undertaken through the Applications of the Company and after entering the aforementioned data to verify his/her identification.
• The Client approves that he/she will not be granted access to deal through the Company’s online trading system prior to signing the Account Opening Agreement which entitles the Company to open a securities’ trading account in the name of the Client comprising of a cash account and a securities portfolio account.
• The identity verification data along with the trading password that permit the Client to access the Applications and the online trading system of the Company are strictly confidential and the Client must ensure that no person can obtain such The Client hereby undertakes to treat such data as strictly confidential and will be held fully responsible if they were obtained by any person even by mistake. In the event this information has been compromised to any third party even if by mistake, the Client shall be exclusively liable for any damage that he/ she may sustain; without any liability attaching to the Company for any tampering or errors resulting from the loss of such data or their use by another person, even if it was not the Client or one of those authorized by him/her.

 

• The Company will deal with any instructions that it receives from the Client through his/her private online trading account as if they were sent by the Client as long as he/she had access to the Company’s online trading interface was accessed via the Client’s respective password to implement his/her the Company will be bound with executing such instructions to the extent they are not surpassing any limits of competence that were laid down for online trading by the Client, the Company’s policy, the NSE or the CMA.
• The Client shall be solely held responsible for any instructions received by the Company via the Applications of the Company “online trading system” including -yet not limited to any errors, omissions, negligence, or repetition of the Client’s instructions.
• The Company and any delegated party authorized by it shall be entitled to assume that any instructions from the Client are free from faults and The Company and any delegated party authorized by it may proceed in light of such instructions of the Client if they include sufficient information for the Company or any authorized party thereof to start execution of the order, provided that such instructions are within the authority of the Client and that he/she has sufficient balance to execute the operation and cover all associated costs.
• The Client undertakes to comply with notifying the Company immediately upon the loss of any of the aforementioned data or obtainment of a third party thereto and his/her knowledge of any unauthorized He/She shall be fully responsible any damages he/she may sustain as a result thereto until the time of making such notice to the Company.
• The Client acknowledges that he/she has read and is fully aware of detecting the “internet risks bulletin” stated on this contract and that the Client is fully aware of the risks of internet access systems and what it entails from risks such as security breaches to the Clients confidential operations and the possibility of third party interference, hacking, or any other security risks referred to in this
• The Company will not be held liable in any way for any damages sustained by third parties resulting from use of the Company’ Applications and “online trading system”.
• The Client’s balance has to be sufficient to perform the required transaction requested via the Company’s “online trading system” albeit sufficient cash funds in the event of purchase, and sufficient securities in the event of sale.
• The Company shall not operate in any consulting capacity; consequently, it shall not provide any consulting services related to trading transactions; that the decision to sell and purchase any securities shall be his/her own decision and that such decision shaII be independent and attributable to his/her personal will, and does not rely on any recommendation from the Company.
• Investing in Stocks or any other form of investment listed in the capital markets does bear the risk of loss and the chance of profit that could include total loss of the Client’s invested
• Under certain market circumstances there may be a difficulty or even impossibility in settling or liquidating the Client’s portfolio.
• By executing the Clients instructions/orders, the Company does by no means endorse the Client’s investment The Company is not under obligation  or  duty  to provide  any  consultation  or  advice regarding  the  soundness  of  the  Client’s purchase  or  sale  decisions. Furthermore, the Company does not in any way recommend nor does it support any consolatory advice found in any consolatory report regarding the investment whether issued by the Company or any other third party.
• There is a possibility that the execution of some transactions may not be performed for reasons including but not limited to the incompatibility of the price with the minimum and maximum limits placed by the Client, suspension of trading imposed by the administration of the NSE.
• The Company retains the right to modify or amend this Annex and/or add any additional terms and provisions without reference to the Client provided that such changes are not in contravention with applicable laws and the Client would be informed with such changes in advance.
• The Company retains the right to refuse any transaction that fails to comply with the terms and conditions set forth in this Annex.
• Prior to submitting any instructions, the Client must confirm that all the data mentioned in the instructions are correct such as but not limited to:
  • Name of the security subject matter of trade;
  • Quantity of securities requested for trade;
  • Required price of performing the transaction (fixed price or market price); and Validity date of the
• The Company may keep electronic record of all the instructions received via the online trading system.
• All transactions executed by means of instructions received by the Company via the online trading system are binding on the Client as soon as he/she accesses the trading program and that no proceeds from the sale of securities shall be delivered to the Client except after the lapse of the settlement
• The Company has the right to refuse the execution of any transaction if according to the Company’s discretion the credit balance of the Client’s cash account is insufficient or will be insufficient at the time of If the Company believes at any time that the Client is in need to cover his/her account with the Company, it may according to its absolute discretion ask the Client to deposit any cash amount to cover his/her account.
• The Client will be notified of the execution status of his/her instructions within 24 hours from the execution date.
• The Client is prohibited from giving orders that may be described as fictitious speculation or deliberately attempting to manipulate trading prices on securities in breach of the applicable laws and regulations especially the NSE trading and listing rules.
• The Company may temporarily suspend the online trading system or the Clients account to access the online trading system for repairs or periodical maintenance that may be required to the online trading system, without any liability incurred on the Company. The Client may not further object on such temporary suspension.

 

4.    Guarantees and exemptions from liability:

• The Company presents no undertakings to the Client in regards to quality, speed, performance, accuracy, reliability or constant readiness or any other matter with regards to using the online trading system.
• The Company does not guarantee, nor does it undertake that trading via the online trading system complies with any standards the Company provides in this respect or that the online trading system• is free from errors or defects.
• The Company shall bear no liability resulting from any loss or damage that may be sustained by the Client except what has resulted from the fraud or willful default of the Company. Specifically, the Company will not be held liable for any losses or additional cost (unless it is established that the reason for such loss and additional costs is fraud or willful default of the Company) that arises from any of the following:
  • Any breakdown of communications, systems, equipment or technical malfunctions whether partial or full;
  • Fraud, counterfeiting or forgery;
  • Any event or circumstance beyond the will or control of the Company; or Any contingent damage or other damages resulting from circumstances outside the will of the Company.
• Under no circumstances will the Company be held legally liable with respect to the Client or any other third party for any form of damages resulting from the Client’s use of the online trading system or failure to use it properly, including any delay or negligence or any interruption in delivering the services regardless of the form of the action (including negligence or exclusive legal liability), regardless of whether or not the Company has been notified of the possible occurrence of such damages or the possibility of expecting such damages by any other means.
• The Company shall undertake reasonable endeavors to ensure the full performance of its online trading system.
• The Company will not be held liable for any disruptions or malfunction in communication methods and/or utilities that are not under the Company’ direct control, which may affect the accuracy or speed of the instructions submitted through the online trading system.
• The Company will not be held liable for any losses whether actual or expected that may result from the Client’s inability to submit instructions as a result of the breakdown of the online trading system or for any other reason.
• The Company will not be held liable for any computer virus or any other related problem which may result in the poor functioning/inactivity of the online trading gateway and/or the Client’s personal computer.

 

5.    Termination of the Annex

 

• The Client may terminate this Annex at any time by means of notifying the Company of such in Termination will not take effect until actual receipt of such notification by the Company.
• In the event that the Client is in breach of any of the provisions of this Annex the Company may immediately terminate this Annex and cancel the Client’s access to and use of the online trading The Company may also in such case elect to suspend the Client’s access and use of the online trading system until such breach is rectified by the Client, all without prejudice to the Company’s right to terminate this Annex, cancel the Client’s access to the online trading system and to claim any applicable damages.
• Notwithstanding what was mentioned in this article, the Company has the right to unilaterally terminate this Annex at any time by notifying the Client in writing.
• In the event this Annex is terminated for any reason the duties and responsibilities of both the Client and The Company will remain outstanding and unaffected after termination and until the execution of all outstanding transactions the parties were obliged to perform when the Annex was in force.
• In case any changes occurred to the relevant laws, regulations or practices of the relevant market in connection with any of the provisions of this Annex and where such changes require amending of this Annex. the Company shall be entitled at any time to effect such necessary changes immediately and the Client shall be responsible for the implementation thereof without any liability on the Company. In all cases, the Client shall not be allowed to express his/her objection to any amendment added pursuant to the laws, regulations or decisions in If the Client expresses its objection to such amendments, the Company will have the right to terminate this Annex along with the Client’s access privileges to the online trading system. Furthermore, the Company will have the sole discretion - and under no obligation whatsoever- to elect to complete the execution of pending transactions initiated by the Client during the time preceding the termination of this Annex.

 

6.    Internet Risks Bulletin

 

The Client hereby acknowledges and accepts all the risks that may result from the use of the Internet to implement the brokerage transactions and information communications related thereof. Such risks include but are not limited to:

• Third party intervention, which may include data interception and sending it under false pretenses and may subject the Client to identity theft such as persons who are capable of “hacking” an application and sabotaging the application or persons who are capable of tracing application traffic without Third party intervention may also include the introduction of alien software which may include “computer viruses”, “spyware” and “Trojans” to the personal computer etc... which may interfere or sabotage or burn communications which may cause serious damage to the Client’s information technology systems and what it may entail of hardware and software.
• The disruption of the communication network which may include interrupted breakdowns and delays and outages which may result in non- performance of the banking/brokerage operations within the expected time frame and with the expected speed.
• Internal breaches/violations to the Client’s computer systems by the Client’s employees (in the event the Client is a corporate entity) and other delegated users.
• Negligence in dealing with sensitive information by users of the Client’s Computer systems or data stored therein or data which may be printed or extracted by any other means.
• The possibility that encrypted systems may be subjected to brute force attacks or other forms of attack.
• Any other risks that may result from Internet use.

The Client hereby acknowledges that security technology, methods for preventing hackers and other alien third parties wishing to obstruct or interfere with internet communication significantly increases over time. Hence it is possible that it may be necessary to constantly upgrade and update security measures and improving internet connections and online banking operations.

 

The Client acknowledges to providing firewalls and encryption systems, passwords and other login regulations to decrease the risks of internet use in communications, and in executing operations. The Client further acknowledges that every mechanism of all the security mechanisms applied is only as strong as the weakest link in the system, hence it is imperative that upgrading and updating be performed and followed up appropriately, in addition to the implementation of internal security regulations in order to insure optimum effectively of such systems.

The Client hereby acknowledges that in order for the system to run at the optimum effectively, a security requirement to have different levels of access privileges (be it physical access or virtual access) with respect to Information Technology Systems and further acknowledges that access privileges have to be kept to a minimum.

 

7.    Duration

 

This Annex shall be effective for a period of one year, beginning from the date the Company approves the opening of the account. This Annex will be automatically renewed provided that neither party has notified the other with its will not to renew this Annex at least (15) fifteen days prior to the expiry of its original or renewed term and unless one of the parties terminates the Contract during its validity period for any of the reasons mentioned herein.

The Client hereby acknowledges that he/she is the original owner and sole beneficiary of the opening of this account and that all the sources of his/her income are legal. The Client is under obligation to provide any additional information to the Company - if the need for such arises- in order to specify the sources of the income invested in securities trading. Client authorizes the Company to inquire at the banks the Client deals with, while the Company undertakes to keep this information confidential.

The Client hereby acknowledges that he/she accepts to receive his/her log-in password by Email or, where possible, SMS. The Client shall verify his/ her Email Address and Mobile number to ensure to log -into the Application of the company (https://kenya.efghermesone.com/ or EFG Hermes ONE Kenya) and to register his/her account within no more than {2) two business days from the date of signing the contract. Please note that if the Client do not notify the company in writing that he/she did not receive his/her password within {5) days business days from the date of signing this Annex, this will be considered implicit and final declaration by him/her that he/she has received his/her log-in password without any liability to the company.