AGREEMENT BETWEEN THE PARTICIPANT AND THE CLIENT
FOR PARTICIPATION IN SPEED-e
This Agreement is made this ___ day of
________________ ("this Agreement")
By and between
__________________________________________________
residing/situated at __________________________________________________
having account no. ____________ (hereinafter called "the
Client")
And
_______________________________________________________
situated at _______________________________ (hereinafter called
"the Participant").
In this Agreement, the Client and the Participant
shall be collectively referred to as "the Parties" and
severally as "the Party".
WHEREAS
- The Participant is a duly registered depository participant
and is part of the NSDL’s depository system.
- The Participant has been registered with NSDL to offer
SPEED-e, a common infrastructure facility provided by NSDL, which
enables account holders to issue instructions to depository
participants through the Internet. The Participant has agreed to
receive instructions relating to the accounts and to provide
information services relating to the accounts of various Clients
through Internet.
- The Client has expressed its interest in availing of the
services provided by the Participant using SPEED-e.
- The Parties have executed the Depository Services Agreement
pursuant to which the Client owns, controls and operates accounts with
NSDL through the Participant.
- The Parties have agreed to record in this Agreement the terms
and conditions upon which the Client may participate in SPEED-e.
NOW THEREFORE in consideration of their mutual
covenants and promises contained herein, and for good and valid
consideration, the receipt, sufficiency and adequacy of which is hereby
acknowledged, the Parties agree as under:
- Definitions and Interpretation
In this Agreement, words and expressions listed
in this Clause shall carry the meaning assigned to them in this Clause:
"Business Rules" shall mean the
business rules prescribed by the NSDL in pursuance of the Bye-Laws.
"Bye-laws" shall mean the Bye-laws of
NSDL.
"Clients" shall mean persons with whom
the Participant has executed valid Depository Services Agreement.
"Depository Services Agreement" shall
mean the "Agreement between the Participant and the Person seeking
to open an account with the Participant" signed by the Client at
the time of opening the account pursuant to Bye Law 9.1.5 and as
prescribed in Annexure B of the Bye-Laws.
"NSDL" shall mean the National
Securities Depository Limited, a depository registered with the
Securities and Exchange Board of India under the Depositories Act,
1996, of which the Participant is a depository participant.
"PIN" shall mean the Personal
Identification Number, either assigned to the Client or chosen by the
Client pursuant to this Agreement, which may be necessary for the
Client to access SPEED-e.
"Possessed Object" shall mean a smart
card with a silicon chip or such other means capable of storing
information and affixing digital signature which may be used by the
Client for authorising any instruction issued by the Client to the
Participant through SPEED-e.
"Pre-notified Accounts" shall mean
accounts of such type and number as to which NSDL may permit the Client
to transfer securities from the Client’s account, if the Client uses
only Remembered Information for the purposes of accessing SPEED-e.
"Remembered Information" shall mean
and include such confidential information such as password, PIN or such
other information used for authentication of the Client while making
use of SPEED-e, as may be generated by the Client for access to
SPEED-e.
"SPEED-e" shall mean the
Internet-based common infrastructure facility provided by NSDL, which
is being used by the Participant to accept instructions from the Client
and to provide information about Client’s account in relation to the
operation of the Client’s account.
"this Agreement" shall mean this
agreement between the Parties hereto and shall include the recitals,
annexures and schedules, if any to this Agreement, and any modification
or amendment hereof, in accordance with the terms hereof.
"Working Day" shall mean any day as
defined in the Business Rules of NSDL.
In this Agreement, unless the context otherwise
requires:
(a) the singular includes the plural and
vice versa;
(b) words importing any gender include the
other gender;
- reference to any statute, ordinance or other law includes all
regulations and other instruments and all consolidations, amendments,
re-enactments or replacements for the time being in force;
- all headings, bold typing and italics (if any) have been
inserted for convenience of reference only and do not define limit or
affect the meaning or interpretation of this Agreement;
- reference to a Recital, Schedule, Annexure or Exhibit is to a
Recital, Schedule, Annexure or Exhibit of or to this Agreement;
- reference to a person includes a natural person, body
corporate, unincorporated association, government or governmental, semi
governmental or municipal entity; and
- reference to a party means a party to this Agreement and
includes that party’s successors, legal personal representatives and
permitted assignees.
- The Participant shall from time to time prescribe to the
Client the minimum specification of hardware and software that will be
required by the Client to access SPEED-e. The Participant represents
that the Participant has fully complied with all the technical and
operational requirements prescribed for the Participant by NSDL.
- The Client shall have an option of either having a Possessed
Object for validation of the Client’s access to SPEED-e or generating
the Client’s own Remembered Information for validation of such access
by the Client. From time to time, the Participant may prescribe to the
Client, in accordance with instructions received by the Participant
from NSDL, such measures as may be required to ensure the safety and
security of the Client’s access to and usage of SPEED-e and the Client
shall abide by the same.
- The Client agrees to take adequate safety measures for
accessing SPEED-e, including but not limited to:
- In the event the Client has opted for Remembered Information
for access to SPEED-e, the Client shall take all the necessary steps
to ensure confidentiality and secrecy of the Client’s Remembered
Information used for authentication of the Client and shall not reveal
the same to any employee, agent or official of the Participant or to
any other person. The Client acknowledges that failure to adhere to
safety and security measures prescribed by NSDL and the Participant
could lead to a loss of confidentiality and secrecy of the Remembered
Information, thereby exposing the Client to the risk of financial
losses.
- In the event the Client has opted for the Possessed Object,
for the purpose of identifying the Client in the process of
authenticating the Client’s access to SPEED-e, the Client shall take
all necessary steps to ensure that the Possessed Object is kept safely
with itself and not to part with possession of the same to any third
party. The Client shall also ensure that the safety instructions
issued for the usage of the Possessed Object are strictly adhered to.
- The Client acknowledges that in the interests of the security
of the Client’s usage of SPEED-e, if the Client does not opt for
Possessed Object as a means of authenticating the Client’s access to
SPEED-e, the Client shall be entitled to transfer securities only to
the Pre-notified Accounts. Further, the Client shall submit to the
Participant an undertaking in the enclosed format from the holder of
the pre-notified account.
- The Client acknowledges that all instructions received by the
Participant, authenticated pursuant to use of Remembered Information or
Possessed Object shall be conclusive evidence of such instructions
having been issued by the Client and shall be attributed to the Client.
The Participant shall not be held liable for acting on the instructions
so received.
- If the Client has reason to believe that the confidentiality
of the Remembered Information has been compromised or that the
Possessed Object has been lost/misplaced/stolen, the Client shall
intimate the Participant forthwith about such compromise or loss. The
Participant shall take best efforts to forthwith disable the Client’s
access to SPEED-e not later than one Working Day of receipt of such
intimation from the Client. However, if any instructions are received
prior to such disablement, the Participant shall not be liable for
losses, if any, arising out of execution of such instructions.
- In consideration of the access to SPEED-e, the Client agrees
to pay such charges to the Participant as may agreed at the time of
entering into this Agreement. The Participant shall reserve the right
to revise the charges by giving the Client adequate advance notice, in
no event lesser than thirty (30) days, to be issued either in writing
or through intimation issued through SPEED-e.
- The Client agrees that in the event of the Client desiring to
operate any joint account through SPEED-e, it shall be a condition
precedent for usage of SPEED-e that all the joint holders shall execute
a Power of Attorney favouring any one individual who shall be deemed to
be the user of the Remembered Information or the Possessed Object for
access to SPEED-e and issue of instructions to the Participant through
SPEED-e. The Client hereby ratifies and upholds all such instructions
issued through SPEED-e using such Remembered Information or Possessed
Object, as the case may be. In the event the Client changes the holder
of the power of attorney, the Client shall deposit the new power of
attorney with the Participant and ensure that authority to access
SPEED-e is transferred from the old power of attorney holder to the new
power of attorney holder. The usage of and access to SPEED-e using the
Remembered Information or Possessed Object, as the case may be, shall
be deemed to have been made by the holder of the power of attorney at
the time of such access and use.
- The Client shall be entitled to change the Remembered
Information on SPEED-e from time to time.
- The Client shall enter all its instructions in a timely manner
to ensure that the same are capable of being received by the
Participant by accessing SPEED-e at least one clear Working Day prior
to the execution date expected by the Client. (For eg; if the execution
date is on a Friday, the instructions must be received by SPEED-e
latest by Wednesday) The receipt of instructions by SPEED-e shall be
indicated by means of message receipt confirmation screen that shall be
generated on the Client’s computer screen, which shall be capable of
being printed out for the Client’s record. If the instructions are
received by SPEED-e before the aforesaid deadline, the Participant
shall be fully responsible for executing the same within the prescribed
deadline. If the instructions are received by SPEED-e after the
aforesaid deadline, the instructions may be executed by the Participant
on a best-efforts basis, and the Participant shall not be liable for
non-execution of the same. The Client further acknowledges that the
Client shall not have any right to any claim against either the
Participant or NSDL for losses, if any, incurred due to non-execution
of such instructions received late and executed on a best-effort basis.
In the event of any dispute relating to the date and time of receipt of
the instructions on SPEED-e, NSDL’s records shall be conclusive
evidence and the Parties agree that NSDL’s decision on the same shall
be final and binding on both Parties.
- The Participant shall promptly inform the Client about the
status of the instructions received pursuant to this Agreement, but in
no case later than 12.00 noon of the next Working Day of execution date
of instructions.
- The right to use SPEED-e by a Client cannot be assigned or
transferred by the Client under any circumstances, otherwise than
through valid issue of a power of attorney.
- The Client may request for termination of this Agreement at
any time by giving a notice in writing or through SPEED-e to the
Participant. The Participant shall terminate the service within fifteen
(15) days of receipt of such notice.
- This agreement unless terminated earlier shall be deemed to be
terminated immediately on termination of the Depository Services
Agreement.
- The Client agrees to indemnify, keep indemnified and hold the
Participant and NSDL harmless from any loss, damage, claim, suits,
legal proceedings, investigations, expenses of every kind and any other
liability whatsoever, including reasonable attorney’s fees and fees of
such experts as may be become necessary for NSDL and / or the
Participant to engage, caused due to the availing of the services by
the Client pursuant to this Agreement in any and all circumstances
including without limitation, the following:
- Falsehood or misrepresentation of any nature by the Client
(or any person acting on behalf of the Client);
- Failure to use a trustworthy system for access to Speed-e
- Failure to take the precautions necessary to prevent the
compromise, loss, disclosure, modification, or unauthorised use of the
Client’s Remembered Information, Possessed Object or the private key
used to execute the Client’s digital signature
- Notwithstanding anything contained herein, the Client
recognises and acknowledges that the Participant may, in accordance
with instructions received by the Participant from NSDL, prescribe such
other security measures as it deems fit, in replacement of or
supplementing the validation process through the use of Remembered
Information or Possessed Objects, including without limitation the use
of biometrics and such other methods as would validate the identity of
the Client for access to the SPEED-e system. The Client agrees that a
condition precedent for the Client’s access to SPEED-e is that the
Client shall provide such information, data, and access to its
representatives and personnel, as may be designated by the Client as
the users of the SPEED-e system in order to enable Participant to
generate such biometric criteria or other criteria in accordance with
the security measures prescribed by Participant, in accordance with
instructions received by the Participant from NSDL.
- The Participant may withdraw the access of the Client to
SPEED-e at any time provided a notice of at least thirty (30) days is
given to the Client. The Participant may suspend or terminate the
service without prior notice if the Client has breached any of the
terms and conditions of this Agreement or the Depository Services
Agreement, or if the Participant learns of the death, bankruptcy,
lunacy or loss of legal capacity of the Client.
- Any dispute or difference between the Parties shall be
resolved solely by means of reference to binding arbitration under the
arbitration mechanism as provided in the Bye-Laws and Business Rules.
- The above terms and conditions are in addition to and do not
undermine in any manner whatsoever the terms and conditions forming a
part of the Depository Services Agreement.
- Each Party shall bear its own costs in the execution of this
Agreement.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED
THIS AGREEMENT BY SIGNIFYING THEIR ASSENT HERETO BY AFFIXING THEIR
SIGNATURES HERETO AS OF THE DAY AND YEAR FIRST HEREINABOVE WRITTEN:
Signed and delivered by
____________________ _____________ ____________
(Sole/First
Holder) (Signature) (Witness)
____________________ _____________ ____________
(Second
Holder) (Signature) (Witness)
____________________ _____________ ____________
(Third
Holder) (Signature) (Witness)
(for and behalf of the Client)
(to be signed by either sole holder or by each of
the joint holders)
I confirm having received the Power of Attorney
and have read and understood the terms of this Agreement [if
applicable]
______________________
(name & signature)
Power-of-Attorney holder
(to be signed by the Power of Attorney holder
operating the account appointed by either sole holder or joint holders)
Signed and delivered by
______________________________
_________________
(for and behalf of the Participant)
(Witness)
Date : _________
Place : _________