GENERAL CONDITIONS
of
CARIBBEAN MERCANTILE BANK N.V.
established in Aruba
In transactions
with its offices in Aruba, all relations between our Institution
on the one hand, hereinafter called “the Bank”, and
our clients on the other hand shall be subject to the following “General
Conditions”.
Article 1: Scope of Application
All relations, future dealings included, between the offices of
the Bank, established in Aruba, and the client shall be subject
to these General Conditions.
The provisions laid down in these General Conditions shall apply
insofar as not deviated from in special General Conditions that
are applicable in respect of specific services rendered by the
Bank.
Article 2: the Bank’s
Liability for Care
The Bank shall exercise due care on rendering its services.
In doing so the Bank shall reckon to the best of its ability with
the client’s interests, it being understood that the Bank
shall not be bound to avail itself of non-public information
known to it, this to include price-sensitive information.
Article 3: Application of Existing Rules, Practices and Regulations
In the performance of all acts issuing from its relations with
clients, the Bank shall conform to the rules, practices and regulations
prevailing in this respect at the place and time of such acts.
Article 4: Contractual Capacity and Representative Authority
The client vouches for his contractual capacity in respect of
the moneys and all other valuables deposited to his name with the
Bank.
The client shall be liable as against the Bank for any damage
the Bank may sustain in consequence of total or partial absence
of contractual capacity. The client holds the Bank harmless against
all consequences and any claims by third parties in respect of
the total or partial absence of contractual capacity.
The Bank shall be furnished in writing with one or more specimen
signatures of the client and the party (parties) who is (are) authorized
together with, for or in the name of the client, to dispose of
the account or other valuables deposited with the Bank and to represent
the client in transactions with the Bank, along with a specification
of any restrictions set on such authority.
The client shall not be capable of pleading as against the Bank
that the signature cards given or sent to him by the Bank have
been completed incorrectly. Along with his mandatary / authorized
representative, the client shall be liable as against the Bank
for any damage the Bank may suffer in consequence of the acts of
the parties representing him as against the Bank.
Article 5: Changes in [Contractual] Capacity and Representative
Authority
In case no restrictions as referred to in article 4 have been
stated, or if incorrect restrictions have been stated, each of
the signatures furnished to the Bank shall bind the client in full
and for any amount, even if such restrictions are specially set
forth in articles of association or regulations or in general or
special powers of attorney or in any other records.
Changes in or revocation of the authority of the client or of
his representatives or authorized agents, even if entered in public
registers, shall take effect as against the Bank only after the
Bank shall have been informed thereof in writing.
Entries in the Trade Register, Register of Foundations, Community
Property Register or in other public registers, or changes in any
such entries, shall not be capable of being invoked as against
the Bank until after the Bank shall have been informed thereof
in writing.
Retiring partners (or, in case of dissolution, former partners)
shall remain liable in several as against the Bank in respect of
any claim(s) the Bank shall have against the client, whether same
be due and payable, and whether conditional or not, until after
the Bank shall have been informed in writing of such retirement
(dissolution); also thereafter the liability in several shall continue
in effect for commitments of the client, effected prior to the
Bank having been notified of the retirement or dissolution.
Article 6: Secrecy
In respect of an account opened with it, the Bank shall not be
accountable to any party, nor shall it disclose any information
to any party other than the one to whose name the account has been
opened, save for the cases provided by law, with the exception
of the usual exchange of information as in effect within the Bank
and enterprises affiliated with it and with exception of reports
to a credit registration body as mentioned below.
If at any time an unauthorized overdraft
to the debit of the client should be created with the Bank – regardless of the manner,
or in any form or under any name whatsoever – and/or arrears
are created in payment(s) on credit facilities in any form or under
any name whatsoever, including, but not limited to loans, mortgage
loans, credit card facilities, current account credit facilities
or bridging loans, and such overdraft or arrears, as the case may
be, or any other debt owed to the Bank, is not settled within the
period laid down by the Bank, the Bank will be entitled, at the
Bank’s discretion, to report the client to the credit registration
company Caribbean Credit Bureau or, in the discretion of the Bank,
to any other credit registration body.
Article 7: Joint Account Liability
With regard to accounts opened to the names of two or more persons,
unless and insofar as expressly otherwise agreed with the Bank
in writing, all acts performed by any one or more of such persons
in respect of such accounts shall be binding upon all of them,
and they shall all be liable in several and for the totality as
against the Bank.
Article 8: Liability of Associates / Partners
In case an account has been opened to the name of a company not
being a limited liability company, or to the name of a partnership,
each of the associates / partners shall be fully entitled as against
the Bank to dispose of the account even if his authority and liability
should be restricted as per company contract, and all the associates
/ partners shall be liable in several and for the totality in respect
of acts performed by any one or more of them with the Bank, and
any restriction as referred to above shall not apply as against
the Bank unless and insofar as expressly otherwise agreed with
the Bank in writing.
Article 9: Liability of Committee / Group of Persons
If an account is opened to the name of a committee or another
group of persons, such as an association not being a legal entity,
the persons who according to the signature card are authorized
to dispose of the account shall be liable in several for the totality.
With the written consent of the Bank such persons may cause themselves
to be replaced by others, but they shall then remain liable in
respect of obligations existing as against the Bank at the time
of their replacement.
Article 10: Naming of accounts
The headings of the accounts shall conform
to the wishes as stated by the client in this regard, unless
the Bank should object thereto.
The Bank shall be competent, while duly notifying the client accordingly,
to split up client’s account into various accounts with headings
to be set by the Bank, should it deem this advisable.
Article 11: Right to Set Off / Right of Reversal
The Bank shall be competent at all times to set off any and all
claims against the client, whether or not due and payable or conditional,
against counterclaims of the client against the Bank, whether or
not due and payable, regardless of the currency in which such claims
are stated. Setoff shall take place at the exchange rate on the
day of the setoff.
If the claim of the Bank against the client or the counterclaim
of the client against the Bank is not yet due and payable, however,
the Bank shall not exercise its right to set off unless attachment
has been levied against the counterclaim of the client or recourse
is otherwise sought against same, a limited right in rem is created
thereon or the client assigns his counterclaim under special title.
If possible, the Bank shall inform the client in advance that
it shall exercise its right to set off.
Without prejudice to the aforegoing,
the Bank shall be competent and authorized in the event of mistakes,
erroneous and/or wrong
entries such as – but not limited to – those concerning
undue payment, to correct the aforesaid mistakes and/or entries
without the Bank requiring client’s consent or cooperation
for such correction.
Article 12: Exchange Rate Loss
If an account stated in foreign currency
shows a debit balance, any exchange rate losses shall be for
the client’s account
in such a manner that, in case of a drop in the selling rate set
by the “Central Bank of Aruba” for the currency concerned,
the Bank shall be authorized to charge client’s account at
any time desired by it with the exchange rate loss resulting from
this drop.
Article 13: Execution of Orders
The Bank guarantees the correct execution, within a reasonable
period of time, of orders given correctly. Any failing in the execution
of such orders shall oblige the Bank to compensate the client for
a loss suffered as a result, and this up to a maximum of five hundred
guilders per order, without prejudice to the provision laid down
in the second paragraph of article 33 and without prejudice to
the obligation of the Bank, save for any other arrangements effected,
to see to it that such orders be executed still and at no extra
charge.
The Bank shall not rely on the aforesaid maximum of five hundred
guilders if reasonableness and fairness in a concrete case entail
that such reliance shall not apply.
If the client wishes that orders be executed by or on a specific
date, such execution shall be explicitly agreed to with the bank.
The above provisions shall leave intact the Bank’s authority
not to execute orders if the balance of the account shall not permit
such execution or if such execution is impeded by attachment levied
against the client or other comparable circumstances.
Article 14: Use of Means of Communication
The risk of misunderstanding, mutilation,
delay, or of orders and communications not coming through adequately
via transmission
by mail, telephone, telegraph, telex, telefax or any other means
of communication used in transactions between clients and the Bank
and between the Bank and third parties insofar as concerning the
relation with the client, shall be for client’s account.
Without prejudice to the above, the Bank reserves the right not
to execute orders received by it, which appear unclear to it, until
after it shall have received confirmation or clarification thereof.
All consignments to or by the Bank from or to the client or third
parties for the client shall be effected for the account and risk
of the client.
The Bank shall be free in its choice of the means of communication
to be used by it, but it shall thereby observe due care.
Article 15: Calling in Third Parties
When executing the client’s orders
the Bank shall be competent to avail itself of the intermediary
services of third parties for
the account and risk of client, and it shall also be competent
to cause the custody of securities and other valuables of the client
to be given to a third party in the name of the Bank for the benefit
of the client. The Bank moreover shall be competent to provide
such third parties with cover for the account and risk of the client.
The Bank shall observe due care when choosing such third parties.
Unless the Bank manifestly acted carelessly in its choice, it shall
not be liable in respect of any failure by such third parties.
If the client has suffered any loss in such case, the Bank shall
assist him at any rate to the extent possible in his efforts at
remedying such loss.
Article 16: Administration of Securities
Securities (orders) are kept by the Bank listed in consecutive
order, unless other instructions apply. Before the Bank can execute
a stock option order, the client shall be required to sign an option
agreement.
Securities and other valuables of the client, deposited with third
parties to the name of the Bank for the benefit of the client,
shall remain there for the account and risk of the client. For
the purpose of meeting its obligation to deliver these valuables
to the client, the Bank shall be entitled at all times to confine
itself to giving instructions to the third parties for the valuables
to be made available to the client, or to assign to the client
the Bank’s rights in this regard as against the third party.
The securities and other valuables deposited with third parties
to the name of the Bank for the benefit of the client shall form
part of the total valuables deposited on the general account of
the Bank with such third parties; the client shall share proportionally
and pro rata in all the risks attaching thereto.
Article 17: Shortcomings of Securities
The Bank shall not be liable for any shortcomings
of negotiable instruments held or to be obtained by it for the
client, or for
the correctness of the contents thereof.
Article 18: Number-accountability of Securities The securities of the client, deposited by the Bank into the custody
of third parties pursuant to the provisions of these General Conditions,
shall form part of the totality of securities deposited to the
name of the Bank into one of the general security deposits with
such third parties. The Bank shall not be bound to cause the numbers
of such securities to be recorded separately for each client, except
for securities whereby special rights are or can be attached to
specific numbers.
Unless expressly agreed in writing that this shall be done, the
Bank shall not account for numbers of securities to clients, with
the exception of those capable of being drawn for redemption.
Article 19: Administration of Security Deposits
With respect to the securities entrusted to it for the purpose
by the client, the Bank shall take charge of the activities pertaining
to the administration of the securities deposit of the client.
Such activities shall include the collecting of interest, payments
and dividends, the exercising or realizing of claim rights, the
obtaining of new coupon or dividend sheets, the performing of conversion
acts and the depositing of securities for meetings. If the custody
of securities of the client has been given to third parties pursuant
to the provisions of these General Conditions, such third parties
shall be charged with the activities pertaining to the administration
of such securities, without prejudice to the obligation of the
Bank to pay over to the client the amounts the Bank shall receive
from such parties in favor of the client in respect of interest,
payment, dividend or on other grounds.
Article 20: Bank’s Authority
as regards the Purchase and Sale of Securities and the like
The Bank shall be competent to execute all orders for the purchase
and sale of foreign valuables, securities, coupons and negotiable
paper, as also to place or withdraw moneys against securities given
in pledge, at its option with itself or with third parties as opposite
party.
Article 21: Crediting under Reservation
All credit entries shall be made subject
to the proviso that, if the Bank is to receive any counterpart
funds for such entries
from or for the client, the said counterpart funds come into its
possession properly and in time, failing which the Bank shall be
competent to reverse the credit entry, be this in whole or in part.
The Bank shall also be competent to require security for amounts
credited under reservation, or to block any portion of the credit
balance on the account for this. If a credit entry has been made
in the client’s guilder-account for papers stated in foreign
currency that remain unpaid, the Bank moreover shall be competent
to make a debit entry in the client’s guilder account, and
this for the equivalent of such foreign currency at the selling
rate prevailing in Aruba at such time, without prejudice to the
Bank’s authority to exercise its right of recourse.
Article 22: Use of Forms
The Bank may require that for all dealings
and transactions with it the client use forms, information carriers
and other means of
communication prescribed or approved by the Bank, in accordance
with indications given by the Bank. The client shall complete the
forms in full. Other information carriers or means of communication
approved by the Bank shall be used by the client with due observance
of the Bank’s indications.
The Bank shall be competent not to execute orders if when giving
such orders no use has been made of forms prescribed or approved
by the Bank or of other information carriers or means of communication
approved by the Bank. The Bank may require that notifications be
made in a certain manner.
The client shall carefully keep the forms handed or sent to him
by the Bank; immediately upon learning of the loss or theft of
any one or more of these forms or of any other irregularity, he
shall notify the Bank thereof in writing.
Up to the moment the Bank shall have received this notification,
the consequences of the use of such forms, information carriers
or other means of communication shall be for the account and risk
of the client, unless the client proves that the fault lies with
the Bank.
Upon receipt of any such notification the Bank shall try to prevent
the client from being prejudiced to the extent possible. The Bank
shall assume no responsibility, however, for the execution of orders
on the strength of a lost or stolen and/or unlawfully used, forged
or counterfeit form. The client shall be bound, in case the relation
should terminate, to return the unused forms to the Bank as soon
as possible.
Article 23: Instructions for Execution
The client shall see to it that the orders, statements and communications
to the Bank shall be clear and shall contain the correct data.
Transfer orders shall be executed by the Bank based on the account
number stated by the client, and the Bank shall not be bound to
verify the accuracy of the data stated in the order.
Article 24: Costs and Charges/Interest
The costs in connection with legal assistance, including the non-liquidated
costs reasonably incurred by the Bank in respect of a dispute between
the client and the Bank, shall be borne by the client.
Costs incurred by the Bank in and out
of court, in case the Bank should be involved in proceedings
or disputes between the client
and a third party, shall be for the client’s account.
Without prejudice to the above provisions,
all other costs and charges, including but not limited to postage,
stamp, telegram,
telephone, telex, telefax charges and agency fees, extrajudicial
collection costs, as also charges of appraisals deemed necessary
by the Bank and also in the event of (proposed) eviction, issuing
for the Bank from the relation with the client, shall be for client’s
account within the bounds of reasonableness.
These costs and charges, as also the
amounts of interest due by the client to the Bank, shall be charged
to client’s account
by the Bank at the times convenient to it.
The percentage of the interest due by the client or, as the case
may be, to be paid to him shall be determined by the Bank and may
be modified by it from time to time. Without prejudice to the provisions
made in these General Conditions or credit arrangement(s) the client
will have to pay the Bank a late fee, if the client fails to make
his repayment(s) on the due date(s) agreed upon. The amount of
this late fee and the time at which it is charged, will be established
by the Bank and can be adjusted by the Bank from time to time.
Article 25: Commissions and Fees
The Bank shall be competent to charge the client for its customary
commissions and fees in connection with the services rendered by
it.
The Bank shall see to it that at any rate information on this shall
be available at its offices.
Article 26: Conclusive Force of Bank’s
Administration
The accounting records of the Bank, as evidenced by an extract
from its books, signed by it, shall constitute conclusive proof
as regards any amount owing to the Bank by the client or due to
him by the Bank at any time, unless the contrary is proved by the
client.
Article 27: Verification and Approval of Bank Records
Promptly upon receipt by the client of statements of account,
balance statements, security lists, notes, statements of changes
in funds and other valuables or other statements of the Bank, sent
to him by the Bank, the client shall be bound to verify these.
The client moreover shall verify whether the orders given by him
or in his name have been executed by the Bank correctly and in
full. On noticing any mistake, inaccuracy or incompleteness, the
client shall be bound to notify the Bank hereof in writing without
delay and to cooperate towards the correction of such mistake.
If a statement has not been contested by the client within twelve
months from the statement reasonably being deemed to have reached
him, the same shall be considered as having been approved by the
client and consequently he shall no longer be capable of holding
the Bank liable for the consequences of incorrect entries. If there
are any calculation errors in such documents, the Bank shall be
competent and obliged to correct such calculation errors, also
if the said twelve-month period has elapsed.
Article 28: Statement of Address by the Client
The client shall be bound to state in writing to the Bank the
address to which all the documents destined for him may be directed.
Such address shall remain in effect as against the Bank so long
as the client has not furnished the Bank in writing with another
address. All documents directed by the Bank to this address shall
be deemed to have been received by the client. Address changes
shall be notified to the Bank in writing without delay.
Article 29: Fiduciary Transfer of Ownership as Security
As security for any and all claims that the Bank has or shall
acquire against the client on any grounds whatsoever, whether same
be due and payable or subject to conditions, the Bank shall acquire
a right of fiduciary ownership of all property, securities and
valuable papers of or for the client, which the Bank or a third
party for the Bank has or shall receive in its possession on any
grounds whatsoever, or which the Bank does or shall owe him, including
all claims the client has or shall acquire against the Bank on
any grounds whatsoever.
Excepted shall be only those securities that are deposited with
the Bank exclusively for special purposes, such as conversion,
lowering of the nominal value, transfer, exchange, receiving dividends,
interest, coupon sheets or dividend coupons.
The aforesaid right of fiduciary ownership of the Bank shall take
effect each time at the moment when the Bank or a third party for
the Bank shall acquire the custody of such property, securities
and valuable papers or, as the case may be, the moment when such
claims come into being. The Bank shall not be competent to proceed
to selling off the property, securities and valuable papers transferred
to it by way of security unless the Bank has a claim against the
client that is due and payable. Moreover the Bank shall not proceed
to selling off unless the client should default.
If the client should wish to dispose of a portion of the property,
securities and valuable papers transferred by him by way of security,
the Bank shall be bound to transfer that portion of such property,
securities and valuable documents back to the client, provided
the balance remaining shall constitute adequate cover for the Bank
in connection with the claim the Bank has or shall acquire against
the client.
Article 30: Immediate Exigibility and Security
All amounts owing by the client to the
Bank, on any grounds whatsoever – unless
expressly otherwise agreed in writing or if a statutory provision
prescribes the observance of a period of time – shall always
be immediately due and payable.
Similarly, any credit shall become immediately due and payable,
also if a term of repayment or of notice has been agreed to or
a specific due date has been set,
A. if the conditions subject to which the credit has been granted
are not complied with by the client;
B. if the client is declared bankrupt, files a petition to obtain
an official moratorium, or if attachment is levied against goods
or moneys and/or credit space, whether in current account or not,
of the client;
C. if the client is a legal entity or a company not being a legal
entity or partnership, in the event of liquidation or dissolution
and, if the client is a natural person, in the event of his demise
or his being placed under legal restraint;
D. in case any of the circumstances described sub B. and C. should
occur with relation to a surety of the client or with relation
to the party having committed himself as joint and several debtor
for the client’s debts;
E. if it should appear that the client has furnished the Bank with
incorrect data in order to obtain or extend any credit.
In the above cases sub A. to E. inclusive the client shall be immediately
in default without any notice of default being required.
The client shall be bound on demand
to act upon the Bank’s
order to pay the amount due, be this in whole or in part, as required
by the Bank. The client moreover shall be bound on demand by the
Bank to provide security in the form and for the amount required
by the Bank, or to supplement or replace any security provided
that may have become insufficient. The extent of the security required
shall be in reasonable proportion to the amount needed to comply
with the obligations in question of the client.
If the client should fail to act upon
this demand, as also if the client should not comply in any other
respect with his obligations
as against the Bank – on any grounds whatsoever – the
Bank shall be entitled, without giving notice of default, to realize
at its choice all the securities or any part thereof at the time
and in the manner as deemed advisable to it, in order to recover
from the proceeds the amount due to the Bank, with interest and
charges.
Article 31: Termination of the Relation
Both the client and the Bank shall be competent at all times to
terminate the relation in writing; periods of notice need not be
observed then, unless expressly otherwise agreed in writing or
if so required by the nature of the transaction. In case of termination
of the relation by the Bank, the client at his request shall be
informed of the reason of such termination.
The relation shall then be ended as soon as possible; during such
termination the General Conditions shall remain in full force and
effect.
Articles 34 and 35 of these General Conditions shall remain valid
also following the termination of the relation.
Article 32: Client’s Demise
Unless expressly otherwise agreed in
writing, the Bank shall be entitled in the event of client’s demise to transfer the
balance of client’s account, as also any other property kept
in the Bank’s custody for him, with extinctive effect to
the person or persons stated in an attestation of admissibility
to succession issued by a notary in the usual form as being the
heir or heirs, or executor with the power to take possession.
Article 33: Liability of the Bank
The Bank shall be liable if it is to be blamed for any failure
in compliance with an obligation as against the client or if by
law, juristic act or generally accepted practice such failure is
to be ascribed to it, without prejudice to the other provisions
laid down in these General Conditions.
Insofar as not already resulting from the law, the Bank at any
rate shall not be liable if any failure by the Bank should be the
consequence of:
international conflicts;
violent or armed actions or serious threats of any such actions;
measures of any domestic, foreign or international government;
measures by a supervisory authority;
actions of boycott;
labor irregularities at third parties or among its own personnel;
capacity problems with and/or interruptions in the power supply,
communication links or in equipment or software of the Bank or
of third parties.
If any circumstance as referred to in
the preceding paragraph should occur, the Bank shall take such
measures as may reasonably
be required of it – in order to minimize any resulting negative
consequences for the client.
Article 34: Applicable Law
The laws of Aruba & the Netherlands
Antilles shall apply in respect of the relations between the
client and the Bank, unless
expressly otherwise agreed in writing.
Article 35: Competent Judge in Case of Disputes
Any disputes between the client and the Bank shall be handled
by the judge, competent under the laws of Aruba and the Netherlands
Antilles, unless the Bank as plaintiff should prefer the foreign
judge coming into consideration for the client.
Article 36: Deviation from the General Conditions
Provisions that deviate from these General Conditions shall be
laid down in writing.
In case any such written record is lacking, parties may prove deviations
by all legal means.
Article 37: Amendments and Additions to the General Conditions
The text of these General Conditions and of any amendment thereof
introduced by the Bank shall always be available for inspection
at the offices of the Bank. In addition the Bank shall be prepared
at all times to send a copy of the prevailing text to the client,
at his request.
Any amendments made by the Bank in these terms and conditions shall
be deemed to have been accepted by the client, unless he shall
have notified the Bank of his objections within four weeks from
his being reasonably capable of having taken cognizance of the
amendments.
In order to inform the client of any
such amendments and additions, the same shall be sent to the
client should the occasion arise,
and they shall be available for inspection at the Bank’s
offices as well. Amendments and additions to these General Conditions
at any rate shall be binding upon the client one month from their
having been lodged by the Bank with the office of the Clerk of
the Court of First Instance at Aruba and/or the Chamber of Commerce
and Industry in Aruba.
Article 38: Entry into Force
These (revised) General Conditions shall enter into force as and
from the date on which they are lodged with the court registry
of the Court if First Instance, district Aruba.
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© 2006 Caribbean Mercantile Bank
N.V.
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