GTC - General Terms and Conditions
1. Purpose and scope
The following General Terms and Conditions (GTC) apply for the business relationship between the Client and Factum AG Vermögensverwaltung (hereinafter referred to as “Factum”), provided there are no agreements to the contrary. For the sake of better understanding, Factum does not use both male and female forms.
Factum is subject to the supervision of the Liechtenstein Financial Market Authority (FMA), Landstrasse 109, P.O. Box 279, 9490 Vaduz, Principality of Liechtenstein
2. Power of disposal and identification check
Powers of disposal provided to Factum in writing remain valid until written notice of a change is received by Factum, irrespective of any entries to the contrary in the commercial register or other publications.
Factum is only liable for any damage incurred as a result of disposals by unauthorised persons in the event of intentional or gross negligence.
Damage arising from the use of the post, telephone, fax, e-mail and other electronic or other methods of transmission or transport – i.e. as a result of loss, delay, misunderstanding, mutilations or duplicates – are borne by the Client, provided Factum has not acted with intentional or gross negligence.
The Client bears losses incurred as a result of the failure to act on his part or that of a third party authorised to act on his behalf, provided Factum has been demonstrably notified of such third party in writing. Factum is not obliged to clarify whether the Client or his authorised representative are capable of acting.
3. Notifications from the company
Communication between Factum and the Client is carried out in accordance with the methods agreed in the Asset Management Agreement. Notices from Factum are deemed to have been duly delivered in a legally valid manner if they are sent in accordance with the Client’s most recent instructions – or in a different manner, if necessary for the Client’s protection – or are retained for his disposal. The date of dispatch is the date on the copy of the correspondence kept by Factum.
4. Loss threshold reporting
Investment firms providing the service of portfolio management inform the Client where the overall value of the portfolio, as evaluated at the beginning of each reporting period, depreciates by 10% and thereafter at multiples of 10%, no later than the end of the business day in which the threshold is exceeded or, in a case where the threshold is exceeded on a non-business day, the close of the next business day (Article 62(1) of the Commission Delegated Regulation (EU) 2017/565). The relevant reporting period is defined by Factum in accordance with the applicable regulatory requirements.
5. Optaining Client information and notifications from the Client
In order to provide its services, Factum must obtain various information from the Client, for example about his knowledge of and experience with financial instruments, his financial circumstances and his investment objectives, requirements of the Markets in Financial Instruments Directive (MiFID) or compliance with duty of care obligations. It is in the Client’s interest to provide Factum with this information, as otherwise Factum will be unable to provide its services.
Furthermore, it is important that the information provided by the Client is free of inaccuracies and that it is correct and complete. The Client information helps to act in the best interest of the Client, i.e. to recommend asset management or financial instruments that are suitable for him. Complete and truthful information from the Client is essential in this respect.
If Factum must provide the Client with information (e.g. information about costs) or documents (e.g. Packaged Retail & Insurance-based Investment Products Key Information Document [PRIIP KID]) prior to execution of an order, or if it requires further information or instructions and it is unable to reach the Client because the Client does not wish to be contacted by Factum or because the Client is temporarily unreachable, Factum reserves the right not to execute the order in order to protect the Client. In such cases, Factum assumes no liability for orders that are not executed in a timely manner or for damage (in particular, as a result of losses or lost profits).
Factum is authorised to rely on the accuracy of the information obtained from the Client, unless it knows or should know that such information is old, incorrect or incomplete.
The Client agrees to inform Factum in writing if the information he has provided to Factum, such as his name, address, domicile, nationality, tax residence, etc., should change. Furthermore, as part of an ongoing business relationship, the Client is obliged to update his information at regular intervals at the request of Factum.
Factum is authorised and in some cases obliged to record telephone calls. For the purpose of the potential need to provide proof, Factum is authorised to save other electronic communications, for example e-mail, faxes, etc. recordings and saved communications may be used as evidence. They are stored in accordance with statutory requirements.
7. Execution of orders
At most, Factum is only liable for timely payment of interest in the event of defective execution of an order, in particular, late execution, or failure to execute an order, unless it has been expressly notified in writing of the risk of additional damage in individual cases. In all cases, the Client bears the risk of unclear, incomplete or erroneous orders.
Factum is not to be held liable for non-execution of orders or delays in the execution of orders as a result of the fulfilment of statutory obligations (in particular, in accordance with the Due Diligence Act (DDA; Sorgfaltspflichtgesetz – SPG) or in connection with economic sanctions. Factum is authorised to act in a manner necessary to safeguard interests at its discretion.
Factum is not obliged to execute orders issued electronically if no special agreement to this effect has been concluded.
For orders for investments abroad or transactions involving financial instruments, Section 15 of the GTC (Duty of confidentiality and release from the duty of confidentiality) must be observed.
Communication between Factum and the Client is carried out in accordance with the methods agreed in the Asset Management Agreement. Client complaints due to defective or delayed execution of an order or failure to execute an order of any type, or complaints related to the reporting and accounting carried out by Factum that the Client receives periodically as well as any other notifications or actions on the part of Factum, must be submitted when the Client becomes aware of them or upon receipt of the notification, but not later than the deadline set by Factum of one month from the date of dispatch of the communication agreed in the relevant Asset Management Agreement. The date of dispatch of the relevant document is authoritative for the commencement of the period. If no complaint is lodged, the execution or lack of execution, or the statements or notifications, including any restrictions, are deemed to be approved. Approval is also deemed to have been given if Factum requests written approval from the Client and such approval is not received by Factum by the specified deadline.
If a notification or communication expected from Factum is not received, the complaint must be lodged when the Client should have received the notification or communication via ordinary post. If the complaint is lodged late, the Client bears any resulting losses.
The reporting and accounting provided by Factum is deemed corrected and all of the items contained therein approved if the Client does not lodge a written objection within one month of dispatch.
Complaints regarding Factum or its employees, or complaints in connection with asset management or investment advising services, or other comments may be submitted in writing, electronically or verbally to Factum. The corresponding contact details can be found on the Factum website: www.factum.li
Complaints can also be submitted to the Conciliation Board of Liechtenstein: www.schlichtungsstelle.li
9. Multiple clients
An agreement may be concluded between Factum and more than one person. In such cases, the exercise of the rights arising from the Agreement are governed by special agreements; if there is no such agreement, the clients can each exercise the rights arising from the Agreement individually. All clients are jointly and severally liable for any claims by Factum arising from such an Agreement.
10. Fees, charges and other costs
Subject to any special agreements between Factum and the Client, the fees charged by Factum (fixed and, where applicable, performance-based fees) are based on the relevant rates defined in the applicable fee structure and can, if necessary, be modified by Factum accordingly.
Any tax that is due must also be paid in addition to the specified fees.
The costs of the custodian bank for the settlement of transactions and custody fees such as statutory taxes, duties, fees, commission, etc., are also payable by the Client.
Factum is authorised to debit the fixed and any performance-based fees it is owed to the Client’s account against invoice.
11. Dormant business relationships
The Client is obliged to take measures to prevent his business relationship from becoming dormant and to contact Factum if he has any questions regarding dormant business relationships. Dormant business relationships may be continued at the discretion of Factum or terminated without notice at the discretion of Factum by sending a notification of termination by post to the address last provided by the Client.
12. Granting of benefits
Factum reserves the right to grant third parties benefits for the acquisition of clients or the provision of services, provided these improve the quality of the service. These benefits are generally calculated on the basis of the asset management or investment advising fees charged to the Client.
The Client acknowledges and accepts that third parties may grant benefits to Factum, generally in the form of holding fees, in connection with the brokering of clients, the acquisition or sale of collective capital investments, structured products, certificates, notes, etc. (hereinafter referred to as “Products”). These benefits vary in amount from one Prod-uct to another and one Product provider to another. Holding fees are generally calculated on the basis of the volume of a Product or Product group. The fee amount generally reflects a percentage of the administrative fees charged for the respective Product which are paid periodically for the duration of the holding period. Securities issuers may also grant sales commission in the form of one-off payments, the amount of which reflects a percentage of the issue price.
Subject to any arrangement to the contrary, the Client has a right to request further details in relation to any such arrangements made by Factum with third parties at any time, before or after the provision of the service (purchase of the Product).
Benefits will either be avoided or prevented, or refunded to the Client. Any small non-cash benefits such as market analyses, training for certain financial Products, etc., are retained by Factum, insofar as these benefits contribute to an improvement in the quality of the service for the Client. If the Client does not request any further details before the provision of the service or should he go on to acquire the service after having received further details, he waives any entitlement to the issue of information as understood by Article 1009a of the Liechtenstein Civil Code.
13. Tax and general legal considerations
The Client himself is responsible for the ordinary taxation of his assets as well as the resulting income in accordance with the applicable provisions in his tax domicile. He is responsible for compliance with the regulatory and statutory provisions that apply to him (including tax laws) and shall adhere to the corresponding provisions at all times.
Subject to special provisions or agreements to the contrary, the advice or information provided by Factum does not refer to the tax consequences of investments for the Client or, in general, to his tax situation; in particular, Factum assumes no liability for the tax consequences of the investments it recommends.
14. Data processing, outsourcing and data protection
In the course of processing and maintaining the client relationship, it is necessary for Factum to process and use personal data, transaction data and other data related to the business relationship with the Client (hereinafter referred to as “Client Data”). Client Data includes all information in connection with the business relationship with the Client, in particular, confidential information about the contractual partner, where applicable, other authorised representatives, beneficial owners and any other third parties. “Confidential information” includes, among other things, the name/company, address, domicile, residence, date of birth/founding, profession/purpose, contact details, account number, IBAN, BIC and other transaction data, account balances, portfolio data, information about loans and other financial services as well as the tax identification number and other relevant information related to tax or due diligence laws.
Within the framework of order processing agreements concluded by Factum in accordance with the provisions of data protection law, Factum is authorised to outsource business areas (e.g. information technology, maintenance and operation of IT systems, printing and sending of documents, the compliance function, the risk management function, internal audit, due diligence officer, investigating officer) in full or in part to selected contractual partners (hereinafter referred to as “Outsourcing Partners”) and to have individual services provided by selected contractual partners (hereinafter referred to as “Service Providers”). For this purpose, Factum is authorised to disclose the necessary Client Data to the Outsourcing Partners and Service Providers.
The Client is also aware and agrees that Client Data may be disclosed internally and processed by employees of Factum in Liechtenstein or abroad (in particularly, electronically) in connection with the management and maintenance of the business relationship. The Client Data is always disclosed to the respective Outsourcing Partner or Service Provider in accordance with statutory, regulatory and data protection requirements. Factum takes appropriate technical and organisational measures to ensure the confidentiality of the data.
15. Duty of confidentiality and release from the duty of confidentiality
Based on statutory provisions related to the duty of confidentiality, data protection and other professional secrecy obligations (hereinafter referred to as “Protection of Confidentiality”), the members of Factum bodies, its employees and agents have an unlimited obligation to maintain the confidentiality of information that is disclosed to them on the basis of the business relationship with clients. The information that falls under the Protection of Confidentiality was defined in Section 14 above as “Client Data”. In order to provide its services and to safeguard its legitimate interests, it may in some cases be necessary for Factum to disclose the Client Data that falls under the Protection of Confidentiality to third parties in Liechtenstein or abroad. The Client expressly releases Factum from the Protection of Confidentiality with respect to the Client Data and authorises Factum to disclose the Client Data to third parties in Liechtenstein or abroad. The Client Data may also be disclosed in the form of documents that Factum has received from the Client or third parties in connection with the business relationship or that it has created itself. In particular, Factum may disclose Client Data in the following cases:
– Factum is ordered by a government agency or a court to disclose the Client Data on the basis of a law, regulatory requirement and/or international treaty.
– Compliance with the Liechtenstein and foreign laws that apply to Factum requires the disclosure (e.g. the disclosure of transactions in accordance with the Markets in Financial Instruments Regulation [MiFIR]).
– Factum makes a statement regarding legal proceedings that the Client threatens or initiates against Factum (even as a third party) in Liechtenstein or abroad.
– Factum makes a statement regarding legal proceedings that third parties initiate against Factum on the basis that Factum has provided services for the Client.
– Factum initiates enforcement action or takes other legal measures against the Client.
– Factum makes a statement in response to accusations that the Client has levied against Factum in public, in the media or to the authorities in Liechtenstein or abroad.
– Factum Service Providers receive access to Client Data in the framework of agreements that have been concluded (e.g. outsourcing agreements or order processing agreements).
– Factum outsources individual business areas (e.g. printing and sending of documents, the compliance function, the risk management function, internal audit, due diligence officer, investigation officer, marketing) in full or in part. In order to comply with statutory due diligence obligations, Factum is authorised in individual cases to engage third parties in Liechtenstein and abroad and to transmit the corresponding Client Data.
– In order for it to be able to provide its services, it may be necessary for Factum, employees of Factum or employees of its agents who have undertaken to adhere to strict confidentiality to permit remote access to the Client Data from Liechtenstein or abroad.
– The product-specific asset documents (e.g. a security or fund prospectus) allow for the disclosure of Client Data.
– In the framework of trading or managing assets, Factum is obliged and/or authorised by legal regulations in Liechtenstein and abroad to disclose Client Data, or disclosure may be required for the execution of a trading transaction or to manage assets. The latter may be the case, for example, if trading venues, collective custodians, third-party custodians, stock exchanges, brokers, banks, issuers, financial market supervisory or other authorities, etc., are obliged to request disclosure of the Client Data by Factum. In individual cases, Factum may disclose Client Data on request or at its own initiative (e.g. in order to complete the documents necessary for a trading transaction or management). Requests may also be submitted after the conclusion of a trading transaction or management of assets, in particular, for monitoring and investigation purposes. When the Client issues instructions to trade or manage financial instruments, he expressly authorises Factum to disclose his Client Data as necessary. The Client is aware that the Client Data will be processed by Factum and third parties for the relevant purpose, and that after it has been disclosed it may no longer be subject to the Protection of Confidentiality. This is the case in particular for disclosures abroad, and it cannot be guaranteed that the level of protection abroad will correspond to the level of protection in Liechtenstein. Liechtenstein and foreign laws and regulatory directives may oblige third parties to disclose the Client Data they have received, and Factum has no control over any further use of the Client Data.
Factum is not obliged to inform the Client if his Client Data has been disclosed.
The terms and conditions for termination specified in the Asset Management Agreement apply. Factum is entitled to terminate existing business relationships at any time at its discretion without the need to state a reason. Even if there is a notice period for termination or there is an agreed end date, Factum is entitled to terminate the business relationship with immediate effect if the Client is in default on a payment, his assets have deteriorated significantly, enforcement proceedings have been initiated against him, or criminal proceedings are pending against him which may harm the reputation of Factum.
17. Public holidays
Liechtenstein public holidays and Saturdays are equivalent to Sundays with respect to business transactions.
18. Place of performance
The city where Factum has its head office is the place of performance for the obligations of both parties.
If one or more of the provisions of these GTC are or become ineffective or invalid, or if there are gaps in the GTC, this does not affect the validity or enforceability of the other provisions. In such cases, the parties endeavour to replace the invalid or unenforceable provision with a valid and enforceable provision or, in the case of a missing provision, to agree such a provision that most closely approximates the intended purpose of the provision being replaced or the provision that is missing or that is incomplete.
20. Applicable law
All contractual relations between the Client and Factum are governed exclusively by Liechtenstein law.
21. Place of jurisdiction
The place of jurisdiction for all disputes arising in connection with this Agreement is Vaduz. Factum is, however, entitled to assert its rights at the Client’s place of residence or before any other competent court.
Factum may make amendments or additions to the GTC at any time. The Client will be informed of amendments in writing or another suitable method and such amendments are deemed approved if objection to them is not received within one month.
These General Terms and Conditions (GTC) enter into effect on 1 July 2019. The most recent version of the GTC can be accessed at the Factum website at any time: www.factum.li