Terms of Business

Dated:  29 January 2020

1. General

1.1 These Terms of Business (the “Terms”) together with your completed and signed Client Fact Find (the “CFF”, collectively with the Terms referred to as “the Agreement”), enclosed in Annex 1, govern the legal relationship between you (hereinafter, the “Client”) and Timberland Invest Ltd. (hereafter referred to as the “TIL”) in respect of the services TIL provides to the Client.

1.2 The Client should read the Terms, and any document referred to herein very carefully. If there is anything that the Client does not understand the Client should discuss this matter with his/ her contact within TIL and seek the necessary clarification.

1.3 TIL’s registered office is at 171, Old Bakery Street, Valletta, VLT 1455, Malta. TIL’s business office is located at Aragon House, St. George`s Park, St. Julian`s STJ 3140, Malta and may be contacted on +356-209081-00.

1.4 TIL may communicate with the Client by telephone and electronic mail unless otherwise instructed by the Client. Documents sent by electronic mail (whether or not containing confidential information) will not be encrypted unless specifically requested by the Client in writing.

1.5 TIL reserves the right to record, monitor or access any or all e-mails, calls or any other forms of communications sent to it.

1.6 Communication between Clients and TIL will be made in the English language, unless agreed otherwise by mutual agreement between both parties. In the event of discrepancy between the content of the Terms and any communication in a foreign language, these Terms, provided in English, will prevail.

1.7 The Terms cover the provision by TIL of the following services:

(each “a Service” and collectively referred to as “the Services”)

1.8 The Terms contain important information regarding the way in which TIL will provide the Services to the Client and the Client’s legal position.

1.9 TIL will provide the Client with a copy of these Terms and the most recent CFF upon request.

2. Representations and warranties

2.1 The Client represents and warrants to TIL that:

2.2 By agreeing to these Terms the Client is authorising TIL to deduct or withhold any sum, which TIL is required or liable to deduct or withhold under the law or practice of any revenue authority in any relevant jurisdiction.

2.3 The Client represents and warrants that he/she is in compliance with and shall comply at all times with any applicable law including Maltese tax and exchange control laws and regulations. The Client further represents and warrants that any foreign currency which forms the subject of the Agreement is money which has lawfully been invested out of Malta and that any necessary authorisations in this respect have been obtained.

3. Regulation

3.1 TIL is regulated by the Malta Financial Services Authority (the “MFSA”), whose offices are situated at Triq l-Imdina, Zone 1, Central Business District, Birkirkara, Malta, CBD 1010 Malta.

3.2 TIL is licensed by the MFSA under the Investment Services Act 1994 and holds a Category 1a Investment Services Licence. TIL provides investment services business in accordance with its licence.

3.3 TIL will provide the Services in accordance with applicable laws, regulations, bye-laws, licence conditions, guidelines, exchange requirements, customs, usages and other provisions or market practices (the “Rules”) to which TIL may be subject from time to time.

3.4 If any conflict arises between the Terms and the Rules, the latter shall prevail.

3.5 TIL may provide other services to Clients which are not regulated and do not require a licence by the MFSA.

4. Client Categorization

4.1 TIL shall categorise Clients into one of the following categories:

The level of protection offered and due to each Client depends on the category assigned to each Client. The Client’s categorisation will be identified in the CFF and shall be advised to the Client prior to the provision of the Services.  Where the Client is an undertaking falling within the definition of ‘Professional Client’, TIL shall inform it prior to any provision of Services that, on the basis of the information available to TIL, the Client is deemed to be a Professional Client, and will be treated as such unless TIL and the Client agree otherwise. Should TIL re-categorise the Client, TIL will inform the Client accordingly.

4.2 The Client may also request (in writing) TIL to change the category in which he/she has been classified. If the Client requests to be treated as a Professional Client, the Client must prove to TIL that it qualifies as a Professional Client in accordance with applicable law and regulation. TIL reserves the right to accept or refuse any such request for change in classification. Before a re-categorisation, TIL shall inform the Client in writing on the consequences of this new classification. 

4.3 The Client understands that its classification as a Retail Client will grant the Client the highest level of investor protection and transparency in terms of applicable law and regulation. The Client understands that a change to its classification may have an effect on the level of protection afforded to it.

4.4 The Client agrees to advise TIL in writing of any material changes in the information provided to TIL which may affect Client categorisation.

5. Type of Services

       5.1 Advisory Services

5.1.1 TIL shall, where applicable, provide investment advisory services to its Clients suitable to them to achieve their investment objectives. The provision of investment advice shall be subject to the terms of an investment advisory agreement entered into between TIL and the Client.

5.1.2 TIL shall inform the Client, in writing, of the following, before providing investment advice:

5.1.3 Before providing investment advice to the Client, TIL shall undertake an assessment of suitability as required by the Rules. To this end, the Client agrees to provide such information to TIL as it may require to determine the Client’s knowledge and experience in the investment field relevant to the specific type of financial instruments in respect of which investment advice is to be provided, the Client’s financial situation including his/her ability to bear losses, and his/her investment objectives including his/her risk tolerance so as to enable TIL to recommend to the Client the financial instruments that are suitable for him/her and, in particular, which are in accordance with his/her risk tolerance and ability to bear losses.

5.1.4 Specifically in respect of Clients categorised as retail clients, TIL shall provide to the Client in writing, before an investment transaction is undertaken, a statement setting out the investment advice, and how this meets the preferences, objectives and characteristics of the Client as well as any prejudice or disadvantage that may be suffered by the Client if the investment advice is followed, subject to the best knowledge of TIL at that time and subject to the information that the Client has given to TIL in the CFF. TIL shall also provide details of any risks that may arise in connection with an investment in a particular financial instrument in respect of which investment advice is provided. The Client will be given sufficient time to read and understand the statement.

5.1.5 TIL will retain a record of all investment advice given to the specific clients.

5.2 Reception and Transmission of Orders

5.2.1 TIL shall, where applicable following the provision of advisory services as to the suitability of the investment, or on an execution only basis, as applicable, receive orders from the Client and transmit the orders to a third party for execution.

5.2.2 Where the service of reception and transmission of orders is not preceded by investment advice, TIL shall not make any assessment of the suitability of the investment for the Client.  TIL shall be under no duty to monitor, review or advise the Client on any investment made. TIL shall however keep records of the transactions made and inform the Client in accordance with the Rules on the transaction executed on the Client’s behalf.

5.2.3 TIL shall provide the service of reception and transmission of orders following an assessment, where applicable, as to whether the product or service is appropriate to the Client subject to the best knowledge of TIL at that time and subject to the information that the Client has given to TIL in the CFF. TIL shall perform a target market assessment prior to any transaction order placed by the client.

5.2.4 In order to be in a position to evaluate whether the product or service is appropriate, the Client agrees to provide TIL with information regarding his/ her knowledge and experience in relation to specific products or services.

5.2.5 TIL shall provide regular reports to the Client as set out in these Terms and in accordance with the Rules.

5.3 Placement of instruments without a firm commitment basis

5.3.1 TIL shall, where applicable, market newly-issued securities or securities which are already in issue but not listed, to its Clients.

6. Client Profile

6.1 Appropriateness Test

6.1.1 When providing investment services other than investment advice, TIL shall, unless specific exemptions apply in terms of applicable law and regulation, conduct an appropriateness test. Based on the information provided by the Client, TIL shall determine whether the product or service requested by the Client is appropriate. Where the product or service requested by the Client is deemed inappropriate, TIL shall issue a warning to the Client. Such warning shall be issued in writing.

6.1.2 TIL may provide the services of reception and transmission of orders without the need to conduct an appropriateness assessment where the transaction is deemed to be at the Client’s initiative, provided that the request is in relation to a non-complex instrument, and the Client has been notified that TIL is not required to assess the appropriateness of the financial instrument, and furthermore, provided that TIL confirms to the Client that it complies with the obligations concerning conflicts of interest. In view of that the Company is not required to conduct such an appropriateness assessment, the client shall not benefit from the relevant protection laid down in applicable Rules.

6.1.3 If based on the information provided by the Client, TIL believes it has insufficient information to assess the appropriateness of the product / service for the Client, TIL shall inform the Client that TIL is not in a position to assess appropriateness.

6.2 Suitability Test

6.2.1 When providing advisory services, TIL shall conduct a suitability test. TIL needs to establish that the product / service requested: (a) meets the objectives of the Client; (b) is such that the Client is able to financially bear any related investment risks consistent with his / her investment objectives; and (c) is such that the Client has the necessary experience and knowledge to understand the risks involved. 

6.2.2 In case where TIL is providing investment advice to a professional client, TIL shall be entitled to assume that such Client is able financially to bear any related investment risks consistent with his investment objectives.

6.2.3 In order to be in a position to evaluate such suitability, the Client agrees to provide TIL with information regarding his/her investment objectives, financial situation in relation to specific investment services and products.

6.2.4 If TIL determines that, from the information provided by the Client, it does not possess sufficient information to be able to provide the relevant service to such Client, TIL shall refrain from providing such service.

6.2.5 When providing advisory services to Clients that have been categorised as Retail Clients, TIL shall provide the client a suitability statement (“Statement”), before the transaction in financial instruments is executed, and periodically where this is recommended by TIL in the light of the financial instruments and Services offered to the Client. The Statement shall (i) include details relative to the financial demands and needs of the client, (ii) set out the investment advice, (iii) explain why TIL believes that the investment advice provided meets the Client’s investment objectives, personal circumstances and is in line with the Client’s knowledge and experience.

6.3 Provision of information

6.3.1 In the light of the requirements relative to the provision of information to TIL, the Client must ensure that accurate and up-to-date information is provided to TIL. The Client understands and acknowledges that TIL will not be able to, and will refrain from providing any Service unless and until it is in receipt of the required information from the Client. TIL shall promptly notify the Client of its inability to provide the Service or to execute any order or instruction.   

7. Transactions and instructions

7.1 Both the Client and TIL acknowledge that an investment transaction facilitated by TIL is not deemed   to be a loan. Furthermore, TIL shall not hold any Client’s money or assets.

7.2 Am existing Client may give instructions to undertake transactions either in writing or over the telephone. Transactions, orders or queries undertaken through the telephone will be effected in a prompt and timely fashion and to the extent possible, in the order in which they were received.

7.3 Telephone orders need to be followed up with written instructions via email. In giving written instruction, the Client is authorising TIL to draw up an order confirmation form based on the transaction communicated over the telephone. TIL will not assume liability for any errors if the client fails to provide written instructions via email.

7.4 TIL shall be indemnified by the Client against all actions, proceedings or claims which may be incurred or sustained from the execution of the order/s taken over the telephone irrespective of whether the official confirmation order relevant to that transaction was signed or otherwise by the Client.

7.5 TIL shall send the Client a contract note or confirmation in respect of each trade effected on behalf of the Client. The Client agrees to review each contract note or confirmation received and to notify TIL of any errors, omissions or objections within fifteen (15) days from the date of the contract note or confirmation. Following the lapse of fifteen (15) days from the date of the contract note or confirmation TIL shall treat any entries or balances therein as final, conclusive and binding.

7.6 The Client agrees that payments made for any transactions executed by TIL are to be settled within the period stipulated in the contract note or relevant documentation. Any failure to meet these obligations within the allowed time frame shall not to be borne as a liability by TIL. TIL bears the right to immediately dispose of any unpaid investments, of which any differences emanating from this disposal, are to be made good by the Client.

7.7 The Client has the right to inspect the documentation containing his personal data and details around transaction requests, including contract notes, vouchers and entries in TIL’s books or computerised records relating to his / her transactions. These records are retained at least for the duration of the business relationship. TIL may retain such documents / information after the termination of the business relationship for such period as may be allowed or required in terms of applicable law or regulation.

7.8 TIL may combine the Client’s order(s) with order(s) of other Client(s) provided that such aggregation does not operate to the disadvantage of the Client.

7.9 The Client agrees that TIL may, at its discretion, record any telephone communications between the Client and TIL.

7.10 TIL shall not incur any liability whatsoever by reason of acting on any such client instructions or for any error in such client’s instructions and the Client shall indemnify and hold harmless TIL from any loss, cost, damage or expense it may suffer or incur by relying on such client instructions, whether received by letter, telephone, facsimile or other electronic transmission (including electronic mail) or in such other manner as TIL may determine from time to time, and which TIL, in its absolute discretion, has reason to believe to be genuine.

7.11 The Client understands that TIL shall not be held liable as a result of any change in market conditions between the date of the Client’s instructions and the execution thereof by TIL.

7.12 The Client is hereby expressly informed about his right to request, and TIL undertakes to provide any information and documents relative to the particular financial instruments in respect of which the Services are provided to the Client.  Such information or documents, may include, but are not limited to prospectuses, prospectus supplements and prospectus addendums, final terms, terms and conditions, contractual documents, information documents under PRIIPs regulation (base information document), and any other documents relating to the financial instruments in which the Client will invest, information for consumers on means of distance communication (“Other Documents”).

8. Liability and Indemnity

8.1 Subject to the applicable laws and save where otherwise indicated in these Terms, TIL shall not be liable to the Client for any loss or damage incurred in connection with the subject matter of these Terms howsoever caused unless the TIL’s conduct constituted fraud, wilful misconduct or gross negligence on its part or on the part of its agents, including the unjustifiable failure to perform in whole or in part its obligations (the “TIL’s Wrongful Acts”).

8.2 When providing the service of reception and transmission of orders, the Client understands that TIL will transfer the order received from the Client to a third party for execution. TIL shall provide the service of reception and transmission of orders in accordance with the instructions received from the Client and in terms of applicable Rules, including TIL’s best execution policy. No liability shall attach to TIL resulting from the execution of the order by a third party, to the extent that TIL did not act with gross negligence, with wilful default or fraud in the transmission of the order to third parties for execution, and to the extent that TIL acted in accordance with instructions received from the Client and in accordance with the Rules and its best execution policy.

8.3 The Client undertakes to hold harmless and indemnify TIL against all actions, proceedings, claims, costs, demands and expenses (including all reasonable legal, professional and other expenses) incurred by TIL in relation to such actions, proceedings, claims, costs and demands which may be brought against or suffered or incurred by TIL by reason of its performance of its functions or services under these terms unless due to or caused by TIL’s Wrongful Acts.

8.4 Operational disruption: TIL shall not be liable for any damages resulting from force majeure events related damages, over which TIL has no control.

8.5 No right of set-off shall apply in favour of the Client, except in the event of a res judicata or in event of settlement of claims being reached between parties in terms of law.

9. The Client’s obligations to cooperate

9.1 Changes involving names, addresses or powers of representation that have been provided to TIL by the Client

In order to ensure that business transactions are handled properly, the Client must promptly notify TIL of any changes in name, address and the expiry or modification of a power of representation (especially a power of attorney) that has been provided to TIL. This obligation to notify TIL remains in force in  situations in which the power of representation, as well as its expiry or modification, has been  registered in a public register.

9.2 Clarity of instructions and orders

All instructions and orders sent by the Client to TIL must be clear and, in respect of the services of   reception and transmission or orders, through the filling of an application form with the original signature of the client. Instructions or orders that have not been formulated clearly can lead to delays. In issuing an order to TIL for transmission to third parties for execution, the Client must, in particular, pay close attention to the correctness and completeness of the name of the payment recipient, the declared account number, the declared TIL guide number or IBAN number and the stated task-related currency. Modifications, confirmations or repetitions of orders must be marked as such.

9.3 Special instructions for situations in which an instruction or order is to be completed urgently

If the Client believes that a task needs to be carried out in an urgent manner, the Client must separately notify TIL to that effect. For orders submitted on a printed form, this instruction must be given to TIL via e-mail or telephone communication

9.4 Review of correspondence from TIL

The Client shall promptly check whether order confirmations, commercial paper invoices, securities account lists, profit declarations, invoices and other notifications regarding the Services are accurate and complete; the Client must promptly raise any potential objection and in any case not later than 15 days from the receipt of the relative documents.

9.5 Notifying TIL in case of non-receipt of communications

All reports, statements and communications due to the Client shall be sent by TIL to the e-mail and / or postal address provided by the Client to TIL. If the Client does not receive reports, statements or other communication he must promptly notify TIL to that effect.

9.6 Notifying the Client’s respective authorised representative about the recording of telephone conversations

If TIL is engaged in a legal dispute with a Client, the Client must inform the authorised agent aware of   the fact that TIL has the right to record telephone conversations.

10. Records of face to face communication, recordings of phone conversations and electronic communication with reference to orders

10.1 TIL is legally obliged to keep records of face to face communication, to keep recordings of phone conversations as well as electronic communication (e.g. email, chat, video conferencing or messenger service) in connection with initiation/acceptance, transmission and execution of Client orders in writing or on sound and data carriers, as applicable, and to store these recordings. This applies regardless of whether these are conducted via the business or private phones of employees.  Orders placed by Clients during face to face meetings held with TIL, shall be recorded using written minutes or notes. The Client understands and agrees that such orders are equivalent to orders received by telephone.

10.2 A copy of the recordings concerning these conversations and communication with the Clients shall be available on request for a period of five years or – if requested by the MFSA – for a period of seven years. The Client is therefore hereby informed that that all conversations will be recorded and the Client hereby grants his general consent to such recording of conversations.

10.3 TIL is also entitled, but not obliged under the law, to record conversations, in writing or on sound and data carriers in connection with implementation of the client relationship, which do not have any reference to the Services, and to store these recordings. This includes phone conversations about complaints in particular. Recording shall take place for verification purposes.

10.4 The recordings can be read or listened to by employees of TIL. TIL is entitled, but not obliged, to take minutes of the recordings. The recordings can be used for evidence purposes in any legal disputes. When granting proxy, the Client shall inform authorised representatives that conversations can be recorded.

10.5 The Client agrees and undertakes to utilize the phone-, fax- and/or email addresses and postal addresses provided to the Client for the purpose of processes of instructions relating to the Services. The Client understands that any instruction received from the client using different communication channels to those provided by TIL may not be processed.

11. Client’s Money and Assets

TIL shall not hold monies or assets belonging to the Client.

12. Reporting to the Client

12.1 TIL shall provide to the Client, in writing, as soon as possible after the execution of the order by a third party – and no later than the first business day following the execution of the order by a third party, of from receipt by TIL from a third party of confirmation of the execution of that order – a notice confirming the execution of an order and containing essential information in relation to that order.

12.2     The Client agrees to promptly examine all statements and valuations received from TIL and each entry and balance recorded therein and to notify TIL of any errors, omissions or objections to any entries and balances in such statements or valuations, within thirty (30) days from each statement or valuation date (as the case may be), failing which TIL shall be entitled to treat such statements and valuations and any entries and balances therein as final, conclusive and binding.

13. Conflicts of Interest

13.1 TIL has a Conflicts of Interest Policy which sets out the effective organisational and administrative arrangements that have been put in place to identify, prevent or manage and monitor conflicts of interest that entail a material potential risk of damage to the interests of TIL and its Clients. TIL takes all appropriate steps to prevent conflicts of interest from constituting or giving rise to a material risk of damage to the interests of TIL and its Client.

13.2 It is understood that TIL or any director, officer, employee or tied agent thereof may have an interest, relationship or arrangement that is material in relation to any trade effected on behalf of the Client. The Company declares that it has in place adequate internal procedures to ensure that the Client is in all cases treated fairly and that risks of damage to client interests will be prevented.

13.3 TIL undertakes to bring to the Client’s attention any conflicts of interest which may arise with regards to products promoted by TIL or the services provided by its related companies. In the provision of its services, TIL will seek to ensure that it always acts in the Client’s best interests.

13.4 TIL shall take the appropriate organizational and administrative measures to avoid conflicts of interest. When such measures are insufficient to exclude the occurrence of possible conflicts of interest, TIL must, as a last resort, inform the Client of the general nature and / or sources of the conflict of interest and the steps taken to mitigate at risk to the Client before providing any services to the Client.

13.5 A summary of TIL’s Conflicts of Interest Policy is enclosed as Annex 2 to these Terms. TIL’s Conflict of Interest Policy can be obtained from the TIL upon demand by agreeing to these Terms, the Client consents to the Conflicts of Interest Policy of TIL.

14. Prevention of Money Laundering – Client identification and source of funds

14.1 TIL is subject to the Prevention of Money Laundering laws and regulations in force in Malta.

14.2 TIL shall undertake anti-money laundering checks on the Client in accordance with applicable law, and in particular, the Client is required to produce satisfactory evidence of identity and the source of funds to be invested.

14.3 The Client represents and warrants that the monies and investments which form the subject of the Agreement and any future additions thereto have not originated and will not originate from activities or transactions which are a criminal offence in terms of applicable law, or which, if carried out, would constitute such an offence or comprise property the receipt ownership or control of which would be such an offence.

14.4 TIL shall not accept any cash for the purchase of financial instruments.

15. Risks

15.1 Investment Risks

15.1.1  The price of all investments can go up as well as down and an investor may not get back the amount invested and selling an investment in an inopportune moment may result in a loss.

15.1.2  Past performance is not indicative of fu­ture performance. Investment markets are volatile in nature and it is important that any investment is viewed as long term in nature. 

15.2      Currency Risk

15.2.1   An investment may have a base currency other than the Clients’ base currency and thus carries with it an element of currency risk which can affect the value of any investment and the income generated therefrom, positively or negatively, including interest or dividend payments. In addition, upon the sale or maturity of the Client’s investment, the realisable value might be less than the initial outlay when exchanged in the Clients’ domestic currency.

15.3 Credit Risk

15.3.1  An issuer of a debt instrument such as a bond or other debt instrument may be unable to meet interest and/or principal payments in the future and consequently default on its principal or interest repayments. The longer the term to repayment of principal (maturity), the greater the credit risk.

15.4 Interest Rate Risk

15.4.1  The market value of a bond or other debt instrument may go up or down as a result of a variation in interest rates.

15.5 Other risks

15.5.1  Investments in certain assets may be subject to specific risks which may or may not affect a par­ticular investment. These risks may include Liquidity risk, Country risk, Political risk and Counterparty risk. The exposure to these risks may change over the course of the investment period, and may affect the value of the Client’s investment.

15.5.2 The Client acknowledges that the risks involved and related to an investment are various and the risks referred to in the Terms constitute a non- exhaustive list.

16. Complaints

16.1 In the circumstance were a complaint arises, the Client shall inform TIL by visiting our offices or write to the attention of “The Compliance Officer, Timberland Invest Ltd., Aragon House, St. George`s Park, St. Julian`s STJ 3140, Malta”. The Compliance Officer of TIL shall deal with Client’s complaints reasonably and promptly and in accordance with TIL’s internal complaint handling procedures.

16.2 If your complaint is not ultimately handled to your satisfaction after being dealt with according with TIL’s internal complaint handling procedures, then you may subsequently refer your complaint to the Arbiter for Financial Services who may be contacted at the Office of the Arbiter for Financial Services, First Floor, St Calcedonius Square, Floriana FRN1530, Malta.

16.3 Further details may be found here:  https://financialarbiter.org.mt

17. Charges

17.1 The Client agrees to pay TIL, on demand, its applicable commissions and other fees due in respect of the provision by TIL of any of the Services. TIL undertakes that all commissions and other fees payable to / charged by TIL shall be provided to the Client by means of a durable medium. The Client shall have the option of receiving such information in paper format or on any another durable medium including a USB data stick (“other durable medium”). Information on charges shall also be available on TIL’s website.

The Client is hereby expressly informed about his right to request that TIL undertakes to provide details of costs, commissions and other fees payable to / charged by.

The Client is hereby informed and acknowledges that the following details may be found on the website set out below:

or any other website(s) which shall be notified by TIL to the Client from time to time.

The Client hereby confirms, that he has a regular access to the internet by providing TIL with an email address . The Client undertakes to inform TIL in writing of any changes to his email address or if he is unable to access the internet.

Where the amount of fees, cost or changes cannot be ascertained, the method of calculating that amount will be clearly disclosed prior to providing the Service. TIL shall, in so far as practicable, notify the Client of any proposed changes in commissions and other fees in good time.

17.2 The Client also agrees to pay TIL, on demand, in addition to its commissions and/or fees, any duty, VAT or other tax whatsoever arising in respect of any of the Services provided. TIL shall not be required to give the Client prior notice of the imposition of, or variation in, any duty, VAT or other tax arising in respect of any of the Services.

18. Data Protection and Confidentiality

18.1 TIL shall respect and protect the confidentiality of all information concerning the Client and shall        process personal data in line with its TIL Data Protection Form supplied separately to the Client and in accordance with applicable data protection legislation.

18.2 TIL maintains strict information security policies designed to prevent unauthorised access to the Client’s information. However, the Client’s personal information may be shared with third parties in the course of providing a Service to the Client or as may be required under applicable law as set out in the TIL Data Protection Form (Privacy Policy).

18.3 The Client shall have certain rights pertaining to his/her personal data. These rights and how the Client can avail himself/herself of such rights are explained in the TIL Data Protection Form.

19. Marketing Material

19.1 The Client agrees to receive marketing material related to financial products, financial services and other services offered by TIL.  

19.2 Any processing of personal data that takes place in connection with such marketing communications will be based on our legitimate interest to carry out direct marketing.

19.3 The Client’s has a right to request TIL to stop sending any marketing material by informing TIL in writing.

20. Amendment and Termination

20.1 TIL may amend any provision of the Terms provided that any material changes shall be notified to the Client in good time.

20.2 The Agreement may be terminated at any time by either party with immediate effect upon giving written notice to the other.

20.3 The termination of the Agreement shall be without prejudice to any other rights or remedies TIL may be entitled to hereunder or at law and shall not affect the coming into or the continuance in force of any provision of the Agreement which is expressly or by implication to come into effect or to continue in effect after such termination.

21. Governing law and jurisdiction

These Terms shall be governed by and construed in accordance with Maltese law and the parties hereto agree to submit to the non-exclusive jurisdiction of the Maltese courts.

Annex 1

Client Fact Find

Distributed in conjunction with the Terms of Business.

Annex 2

Conflicts of Interest

Summary of the Conflict of Interest Policy

Scope

Timberland Invest Limited (TIL) faces actual, potential and perceived conflicts of interests during the normal course of its business. This document serves to provide a summary of TIL’s COI Policy, which applies to retail and professional clients alike.

This policy applies to all of TIL’s employees.

Introduction

Through the MIFID II framework, TIL is required to maintain and to operate effective organizational and administrative arrangements with a view to taking all reasonable steps designed to prevent conflicts of interest that can adversely affect the interest of its clients as part of its commitment to protect the best interests of its clients.

Conflicts may arise in the following situations:

Under this policy, TIL employees are required to consider any situation, actual, perceived or potential, wherein their activities with clients and third parties, may present conflicts of interests.

Requirements

TIL must take all effective steps to identify, escalate, manage and prevent conflicts between itself (including affiliated members, clients, third parties, agents and any other person directly or indirectly to itself) and its clients, and between one client and another, which may arise during the provision services to its clients.

TIL employees are bound by this policy and to identify, manage, prevent and escalate any identified conflicts during their course of the business. This process is also to be applied around anti-bribery, personal dealing and market abuse, information barriers and any other requirements emanating from the applicable laws and regulations.

Conflict identification, escalation and Management

TIL employees are responsible for taking immediate action upon the identification of potential or actual conflicts of interests in the course of their duties. In particular, conflicts of interests could arise during new product approvals, product development, new incentive programmes, specific incentives for specific clients, distribution strategy and any other day to day business interactions with clients, agents, manufacturer of bonds and third parties. TIL holds in place an escalation process to determine the risks attached to actual or potential conflicts, the mitigation action needed, the control environment, the determination of residual risk and the residual impact on the clients.

Mitigation of identified conflicts of interest

TIL has in place a conflict of interest register which documents all the identified circumstances which constitute or may give rise to a conflict of interest entailing a risk of damage to the interest of one or more clients, the controls and actions to mitigate such risks. The residual risk is then analysed after all the sufficient steps have been taken to manage and prevent such risks. This register is a live document and is overseen by the Compliance Officer of TIL who is required to identify any conflict of interest and to report directly to the Board of Directors of the Company prior to any entries in the register and any decisions in relation to conflicts of interest.

Where all such steps do not ensure with reasonable confidence that the risks of damage to the interests of the clients will be prevented, as a last resort, TIL is obliged to disclose such conflicts of interests. Such disclosure will be provided within the Client Fact Find Sheet, to enable the clients take an informed decision. Such disclosures, as per MIFID II, also includes the organizational and administrative arrangements that TIL has implemented to manage and prevent the occurrence or impact of such conflicts of interest. The disclosure shall provide the client with general information on the source of conflict and the measures undertaken with regards to such conflicts of interest to enable the client to make an informed decision with respect to the investment service and products to which the conflict of interest has been identified. In cases where the risk to the client cannot be sufficiently mitigated, despite the operational and administrative arrangements in place together with disclosures, TIL will decline the provision of service in relation to the client or circumstance in which the conflict of interest has been identified.

Governance around conflicts of interest

The responsibility for identification, management and control of conflict of interests lies with every employees within TIL. The TIL board of directors is responsible for defining and overseeing the implementation of the governance arrangements to ensure an effective control environment and the necessary information barriers and segregation of duties, amongst others, are reviewed on at least an annual basis. The Board of Directors must also ensure that all employees are aware of this policy and that such policy is embedded in the daily business of all employees whilst ensuring that TIL encourages immediate escalation of risks and identification of weaknesses within the current governance structure as part of its efforts in pursuing the best interest of the clients.

Further disclosures to the customers

TIL is required to disclose a summary of its conflict of interest policy to its clients and to provide the Conflict of Interest Policy to its clients upon request in a durable medium, as per MIFID II definition.

Annex 3

Best Execution Policy

Introduction

Timberland Invest Ltd. (TIL) is a regulated entity by the MFSA authorized under the Investment Services Act of 1994 to receive and transmit orders of clients in relation to financial instruments. As at the date of this Best Execution policy, TIL only receives and transmits orders from clients in relation to bonds issued by Timberland Securities Investment PLC and E-Stream Energy GMBH & Co KG (the “Issuers”), which are  the issuers of securities offered to the public in terms of the Prospectus Directive 2003/71/EC and by the Companies Act (The Prospectus) Regulations of 2005.

This Best Execution Policy is based on the specific characteristics of TIL’s clients (all being retail clients), the financial instruments in respect of which it receives and transmits orders (namely the bonds issued by the Issuers) and the sole execution venue available for this financial instrument.

Scope

Currently, TIL acts as receiver and transmitter of Clients’ specific instructions (orders) to buy or sell bonds issued by the Issuers. TIL only receives orders in paper format following the completion of an Application Form.

In this respect, TIL will only transmit Clients’ orders to the Issuers without amending them. TIL does not “execute” any transactions, therefore is not required to meet the “best execution” requirements. TIL does not actually undertake the transactions themselves, but passes them to the relevant Issuer which undertakes the transaction. The Issuer will be bound by terms of the prospectus when executing the transaction.

Transmission Arrangements

TIL is required to implement procedures and arrangements which provide the prompt fair and expeditious transmission of a client order for execution. TIL is obliged to provide appropriate information to its clients in its Best Execution Policy. Prior consent to such policy is requested from its clients, which is considered as consented through the acceptance of the Terms of Business. Such a policy shall also be published on TIL’s website. Any material changes to the Best Execution Policy will be promptly communicated to the clients through its website.

This policy outlines the strategy for complying with the best execution duties in the reception and transmission of client orders.  This also highlights the most important elements of the execution arrangements in place for TIL and describes the main factors that TIL takes into consideration in establishing the best possible results for its clients.

As applicable, the regulatory obligations require TIL to disclose the execution venues used in respect to of the instrument and the factors affecting the choice of execution venues (including a regulated market, a Multilateral Trading Facility, a systemic internaliser, or a market marker, or liquidity provider or prime broker) per financial instrument, client type and how all these factors affect its choice of the execution venues. Information on any fees and charges of each alternative execution venue in use shall also be disclosed, as applicable. All TIL employees are required to familiarize themselves with the above-mentioned policy and transmit orders in line with the policy. At all times, TIL shall act in the best interest of the clients.

Review of the Policy

At least on an annual basis, this policy is to be reviewed by the Compliance Officer. This annual review shall also include the monitoring of the order of execution arrangements’ effectiveness through ensuring compliance with the execution policy and monitoring the quality of execution obtained through this policy. TIL should also be able to demonstrate to its clients, at their requests, that it has executed their orders in accordance with its execution policy and it shall also ensure that it is able to demonstrate to the MFSA, upon request, compliance with the established best execution rules. In particular, the Compliance Officer, shall assess, on a regular basis, whether the execution venues included in the order execution policy provide for the best possible result for the client or whether it needs to make changes to the best execution policy.

Disclosure to the clients and execution of venues

To the extent applicable, TIL is required to disclose, in good time prior to the transmission of an order for execution, the execution venues to which it transmits clients’ orders for execution. Where, in view of the operations of TIL, the latter is required to disclose execution venues, TIL shall, on an annual basis, publish the top 5 execution venues by type trading volumes wherein it has transmitted client orders for execution in the preceding year and information on the quality of the execution obtained. This information is to be provided to the public in a summarized format. Any monetary benefits received from different participants in the transactions by TIL shall be disclosed to the clients.

TIL may receive and transmit orders of its clients through a single execution firm or venue when it is able to show that this allows it to obtain the best interest for its clients on a consistent basis by obtaining at least as good as results that it could have reasonably expected from using alternative venues. A single venue can be used if it will deliver best possible results for the financial instruments and orders it receives from its clients. In order to be able to do this, TIL is to assess all possible alternatives to the inclusion of a single venue, including the advantages of indirect access, such as routing orders through other intermediaries. Any changes to the Company’s best execution policy shall be communicated to the clients in a durable medium.  

Choice of the execution venue

TIL routes all orders for the acquisition of bonds issued by the Issuers by directing the orders directly to the respective issuer, without thus routing the order through an execution venue. This strategy takes into account ‘total consideration’ of all the best possible results for its clients taking into account price, costs, speed, likelihood of execution and settlement, size, nature or any other consideration relevant to the execution of the order. This has been found to be in the best interest of the clients and to produce the best execution result for the clients of TIL. This shall be disclosed to the clients in good time prior to the reception and transmission of orders.

Timberland Invest Ltd,
Aragon House Business Centre,
Dragonara Road,
St Julian’s, STJ 3140,
Malta