Terms of Service for Omniscience Stacks

GLOBAL ASSETS ALLOCATION INVESTMENT ADVISORY SERVICES TERMS

Omniscience Capital Advisors Private Limited, a Company incorporated under the Companies Act, 1956 and having its registered office at Awfis, 1st Floor, B-Wing, Parinee Crescenzo, G-Block, BKC, Bandra East, Mumbai - 400051 (hereinafter “Investment Advisor” or “Omniscience”, which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its successors and permitted assigns) of the ONE PART AND Recipient of the OTHER PART who is desirous of availing the services provided by the Investment Advisor and therefore is entering into this Agreement to record the scope and extent of services to be rendered by the Investment Advisor to the Recipient.

WHEREAS

1. The Investment Advisor is a SEBI-registered Investment Advisor bearing registration no. INA000007623. Its business is providing investment advice on a non-binding and non-discretionary basis worldwide. The Investment Advisor aims to provide the Recipient with an investment strategy and advise them on asset allocation globally.

2. The Recipient is desirous of availing the services provided by the Investment Advisor. Therefore, the Investment Advisor and the Recipient agree to the terms of advisory services herein. This document records the scope and extent of services to be rendered by the Investment Advisor to the Recipient, along with each Party’s respective rights and obligations.

3. For the sake of clarity, it is mentioned herein, that, both the Investment Advisor and the Recipient shall be collectively referred to as “Parties” and individually as a “Party”.

4. All schedules attached to this Agreement shall form an integral part of it and shall be read in conjunction with it.

NOW THIS AGREEMENT WITNESSETH AND IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS OF BOTH THE PARTIES CONCERNED, BOTH PARTIES HEREBY MUTUALLY AGREE AND RECORD THEIR UNDERSTANDING AS UNDER:

1. DEFINITIONS

The terms below, whenever used in this Agreement, unless repugnant to the meaning or context thereof, shall have the following meaning:

1. “Applicable Law(s)” means all applicable statutes, enactments, laws, ordinances, bye-laws, rules, regulations, guidelines, notifications, notices and/or judgments, decrees, injunctions, awards, writs or orders of any court, statutory or regulatory or taxation authority, Securities and Exchange Board of India (‘SEBI’), tribunal, arbitral tribunal, board or stock exchange rules in India, as may be in force and effect during the subsistence of this Agreement, or, as maybe amended from time to time.

2. “Investment Advice” refers to the non-binding and non-discretionary investment advice provided by the Investment Advisor to the Recipient for investing in the Securities.

3. “Investment Advisory Services” shall have the meaning ascribed to it in Schedule 1 of this Agreement.

4. “Investment Advisory Service Fee” shall have the meaning ascribed to it under Clause 9 hereto to be read in conjunction with Schedule 2 of this Agreement.

5. “Securities”  shall mean and include equity and equity-related securities,  fixed income securities, including debt, money market and securitised debt, stocks, bonds, options, warrants, notes, mutual funds, collective investment schemes, alternative investment funds, other investment vehicles or in derivatives of any of the above, as may be permissible as per the rules and regulations of the countries in which the Recipient desires to invest following the Investment Advice provided by the Investment Advisor. 
   
   

2. APPOINTMENT AND SCOPE OF SERVICES

   1. Under the provisions of this Agreement and Applicable Law, the Recipient hereby agrees to avail of non-binding and non-discretionary Investment Advice from the Investment Advisor to make investments in the Securities.

2. It is agreed between the Parties, that the Recipient shall have full discretion to decide how it desires to utilize the Investment Advice provided by the Investment Advisor. The Recipient is not obliged to utilize the Investment Advice, in whole or in part, for making investments in the Securities.

3. It is agreed between the Parties, that if any information provided by the Recipient is incorrect or if the Recipient acts in a manner inconsistent with the risk profiling and/or suitability analysis and/or advisory services provided then this Agreement shall be void. The Recipient shall be solely responsible for his/her actions and agrees to indemnify and hold the Investment Advisor harmless against any potential loss, claims, or damages arising related to advisory services.
   
   

4. INVESTMENT ADVISOR’S RIGHTS AND OBLIGATIONS

   1. The Investment Advisor shall provide Investment Advisory Services in a professional and reasonably diligent manner.

2. The Investment Advisor shall make such disclosures to the Recipient as may apply to it from time to time, and, as may be required by it under the Applicable Law.

3. Save and except as provided under the Applicable Law, the provision of Investment Advisory Services hereunder cannot be called in question or be open to review at any time during the currency of this Agreement or any time thereafter, except, on the grounds of malafide intention, fraud, conflict of interest or gross negligence.
   
   

4. LIMITATION OF LIABILITY

   1. Notwithstanding anything stated in this Agreement, the Investment Advisor, its affiliates and their respective directors, employees and agents shall not be liable to the Recipient for transacting or omitting to transact in the Securities based on the Investment Advisory Services provided by the Investment Advisor. It shall be the Recipient’s sole responsibility to ensure that it independently assesses the manner in which it desires to utilize the Investment Advice and apportion it accordingly for making investments in the Securities. The Investment Advisor shall not be responsible for how the Recipient chooses to utilize the Investment Advice.

2. The Investment Advisory Services provided under this Agreement do not assure or guarantee any minimum or fixed or assured return when such Investment Advice is utilized for making investments in the Securities.

3. It is agreed that if any information provided by the Recipient is incorrect or if the Recipient acts in a manner inconsistent with his/her risk profiling and/or suitability analysis and/or advisory services provided then the advisory services agreement entered with the Recipient shall be void and he/she shall cease to be an advisory services client. The Recipient shall be solely responsible for his/her actions and agrees to indemnify and hold the Investment Advisor harmless against any potential loss, claims, or damages arising related to Advisory Services.

5. REPRESENTATIONS AND COVENANTS OF THE PARTIES

The Parties, each represent and warrant to the other, as of the date hereof that:

1. it is a duly organized legal entity, validly existing under the laws of the jurisdiction under which it has been incorporated.

2. it has taken and will continue to take all legal steps required under the law of its incorporation and any agreement to which it is a party, to enter into this Agreement and perform all of its obligations set out herein.

3. the execution, delivery and performance of this Agreement by it are within its corporate powers or legal capacity and have been duly authorized by all necessary corporate action.

4. its entry into and performance of its obligations under this Agreement do not contravene, violate or constitute a default under any provision of law or regulation or any legal requirements in the jurisdiction under which it was established or any agreement, judgment, injunction, order, decree or other instrument binding upon such party, as of the date hereof; and

5. upon obtaining all requisite governmental approvals (if any), this Agreement will constitute its valid and binding obligation enforceable in accordance with its terms.

6. SUITABILITY ANALYSIS

Based on the investor’s risk profile, the Investment Adviser recommends and the Recipient agrees to the following asset allocation plans as per his/her risk profile.

Note: Recipient should include all investments to risky asset classes such as private equity funds, hedge funds, real estate funds, etc., as part of the equity allocation as these risky assets have similar or higher risk characteristics to that of conventional equity investments. Also, all investments in income-yielding assets including real estate bought for rental yields and precious metals such as gold should be considered part of fixed income allocation. 

7. ASSET ALLOCATION ASSESSMENT AND INVESTMENT SELECTION

The Recipient also confirms that he/she has reviewed his/her total asset allocation, including the planned investment amount, because of the recommended asset allocation based on the risk profile. The Recipient further confirms that:

1. He/she understands his/her risk profile. He/she would invest according to his/her risk profile with a full understanding of the risk associated with the equity portfolio.

2. He/she understands that equity investments are subject to market risks and he/she can lose up to 100% of his/her investments. He/she understands that for market investments, an ideal holding period is more than 5 years but at least 3 years. He/she also has adequate insurance coverage.

3. He/she takes complete responsibility and liability for his/her investments and the investment decision is not influenced by any promise of returns whatsoever.

4. This Risk Profiler and suitability analysis forms an integral part of and should be read in conjunction with the application form for the Advisory Service Agreement signed by the Recipient with the Investment Advisor.

5. He/she hereby confirms that he/she has taken into account all the investments across all asset classes while deciding upon investing in Omniscience equity strategies. He/she also reconfirms that after allocating money to these strategies, he/she continues to adhere to the asset allocation plan as per his/her risk profile.

8. UNDERSTANDING INVESTMENT RISKS

The Recipient also confirms that he/she has read and understood the risk factors and the disclosures as stated below concerning equity allocations:

1. With a profit potential, there is also a possibility of loss. Therefore, investors may lose capital in markets.

2. Past equity market or strategy performance is not necessarily indicative of future results. There can be no express or implied assurance about strategies’ absolute performance or relative outperformance.

3. Equity investments are subject to market risks. Markets can go down by 10%-20%-30%-50% or even 70%+. Markets can remain down for 1-2-3 years or more. A long-term outlook and commitment of 5 years or more is necessary to increase the likelihood of meeting one’s investment goals.

4. Individual stocks in the portfolios can lose up to 100% of capital.

5. No investor can consistently enter the market just before a rise and exit the market just before a fall.

6. Expected returns can be estimated based on various methodologies. However, all estimates will necessarily have a low confidence level given that the future is likely to be very different from the past.

7. While the Investment Advisor may attempt to outperform the respective benchmark over the long term, typically 5 years, there can be no assurance or guarantee that this will be achieved.

9. FEES & CHARGES

   1. It is agreed between the Parties that the Investment Advisor shall be entitled to advisory fees for the Investment Advisory Services rendered under the terms and conditions of this Agreement, and, as more specifically described and detailed in Schedule 2 hereto (“Investment Advisory Service Fees”). The Recipient, at the end of each calendar month shall provide details of: 

      1. total assets managed under the advisory services;

2. the total investment advisory fees payable for the month to the Investment Advisor (collectively referred to as the “Advisory Portfolio Summary”). 

2. The Investment Advisor can ask for a report from a duly certified auditor/accountant from the Recipient certifying the veracity and accuracy of the Advisory Portfolio Summary on a quarterly basis.

10. CONFLICTS OF INTEREST

    1. The Recipient acknowledges and agrees that Investment Advisor may at its sole discretion, and, on terms and conditions it deems fit, provide Investment Advisory Services to other third-party recipients, as, the Investment Advisory Services provided by Investment Advisor herein are non-exclusive in nature. Similarly, The Investment Advisor acknowledges and agrees that the Recipient is free to avail of Investment Advisory services from other Investment Advisors of its choice even during the subsistence of this Agreement.

2. The Recipient agrees and understands, that, the Investment Advisor, its affiliates, and their respective directors, employees, agents and advisors may have investments in various Securities from time to time, and, such conflicts of interest would be inherent when investing in such Securities. It is intended for such conflicts to be managed primarily by complying with the laws applicable in the jurisdiction in which the aforementioned persons are investing, and also, complying with the laws of the countries in which the Investment Advisor and the Recipient are incorporated.

11. EXCLUSIVITY, NON-CLONING AND AUDIT RIGHTS OF THE INVESTMENT ADVISOR

    1. The Investment Advisory Services hereunder are exclusive and for the sole benefit of the Recipient, and, the Recipient agrees and acknowledges that it will not disclose the Investment Advice provided by the Investment Advisor to any other third-party entity or person. The Investment Advice cannot be sold, marketed and/or reproduced in any manner whatsoever by the Recipient without the prior written express permission of the Investment Advisor.

2. The Recipient hereby agrees and undertakes to strictly adhere to the “non-cloning” of the Investment Advice. The term “non-cloning” of the Investment Advice means that the Recipient or its relatives, affiliates, directors, agents, advisors and employees cannot leverage the Investment Advice hereunder and make trades either in their personal account or accounts where they can be considered direct or an indirect beneficiary of such Investment Advice. The Investment Advisor shall have a right to require the Recipient to provide a certification confirming that there has not been any cloning of the Investment Advice by any of its relatives, affiliates, directors, agents, advisors and employees.

3. The Recipient agrees that the Investment Advisor shall have the right at its sole discretion to audit the Recipient’s books of account only pertaining to the scope of this Agreement at least once in every quarter at the cost of the Investment Advisor. Such audit of the books of accounts shall be conducted by an external auditor appointed by the Investment Advisor, and, the Recipient undertakes to fully cooperate and render all assistance required by the auditor while conducting such audit.

12. CONFIDENTIALITY

    1. The Investment Advisor and the Recipient, during the continuance of this Agreement and after its termination for a period of 3 years, shall not disclose to any person, firm, fund or entity whatsoever, any information relating to the business, investments, finances or any other matter of a confidential nature of any Party to this Agreement (“Confidential Information”), except with the authority of that other Party or unless ordered to do so by a court or authority of competent jurisdiction or disclosure of such information is required under the applicable laws.

2. Notwithstanding what has been mentioned hereinabove, neither Party shall be restricted from disclosing Confidential Information under the following circumstances: 

   1. Such Confidential Information of either Party is in the public domain other than by a breach of this Agreement; or

2. Confidential Information may be required to be disclosed by any Party under the laws under which that Party has been incorporated, or, by any order of any governmental, statutory and/or regulatory authority to whose jurisdiction that Party is subject; or

3. In so far as such Confidential Information is disclosed to the employees, officers, directors, or professional advisors, including affiliates of such Party, provided that the Party disclosing such information shall procure that the aforementioned persons shall treat this information as Confidential Information under the terms of this Agreement. 

13. TERM AND TERMINATION

    1. This Agreement shall come into effect from the date of its execution and shall be valid until terminated by either Party under the terms set out in this clause.

2. Any fees charged before the explicit confirmation shall be considered as an advance against the fees payable for the proposed advisory services. OmniScience holds the right to refuse to get into any kind of advisory service agreement as proposed by the recipient through the online platform or directly or otherwise.

3. Notwithstanding what has been mentioned hereinabove, this Agreement may be terminated by either Party with a 30-day' prior written notice given to the other Party concerned.

4. Notwithstanding the foregoing, this Agreement can forthwith be terminated by either Party upon the occurrence of any of the following events:

   1. The other Party commits a serious breach of this Agreement and (in the case of any breach which is capable of remedy) fails to remedy such breach within 30 days of being required to do so by notice in writing from the non-breaching Party; or

2. The other Party is unable to pay its debts or is insolvent or deemed to be insolvent or if a receiver is appointed in respect of any of its assets; or

3. The other Party ceases to be permitted by the applicable laws in the jurisdiction in which they are incorporated, to act as an Investment Advisor or a Recipient, as applicable.

5. The termination of this Agreement shall be without prejudice to the rights and obligations of the Parties which have arisen on or before the effective date of termination, including but not limited to, discharge by the Recipient of the Investment Advisory Services Fees, and, any other expenses to be reimbursed under this Agreement up to the date of termination of this Agreement.

14. NOTICE

Any notice, communication or documents to be given by one Party to the other Party may be given by personal delivery, courier, registered post or via email at the address provided in this Agreement. The notice shall be deemed to have been served upon the Party to whom it is given, if delivered by hand, upon delivery, if given by post on the expiration of three days of postage and if given by fax or by email upon acknowledged transmission thereof. Further, the Parties agree that the notice shall be served on the person specified herein by both the Parties as the Designated Person.

15. GOVERNING LAW AND DISPUTE RESOLUTION

    1. This Agreement shall be construed under the laws of India. In the event of any disputes, differences, claims and questions (hereinafter referred to as “Dispute”) between the Parties hereto arising out of this Agreement, or, in any way relating to any term, condition or provision herein mentioned, or, the construction or interpretation thereof, or, otherwise in relation hereto, the Parties shall by written notice to other Party (hereinafter referred to as “Settlement/Conciliation Notice”) first endeavor to settle such differences, disputes, claims or questions through a mutual settlement.

2. Failing such settlement, the dispute shall be resolved through arbitration under the provisions of the Arbitration and Conciliation Act, 1996. The language of proceedings shall be English and the seat of such arbitration shall be Mumbai, India before a sole arbitrator mutually appointed by the Investment Advisor and the Recipient. In the event of disagreement between the parties on the appointment of a sole arbitrator, each of the Parties hereto shall appoint its arbitrator and the two appointed arbitrators shall appoint a third arbitrator who shall act as an umpire.

16. MISCELLANEOUS

    1. Relationship: The relationship between the Investment Advisor and the Recipient shall be governed exclusively by this Agreement and no presumption of any relation in the nature of the partnership, joint venture agent or any like relationship shall be presumed to exist between the Parties hereto.

2. Alteration: Any amendment or variation to this Agreement shall not be effective unless made in writing and agreed by all Parties hereto, and thereupon, such altered, varied, changed or amended terms and conditions shall apply as if the same were expressly incorporated herein.

3. Assignment: Neither Party shall assign this Agreement to any third party except with the express written consent of the other Party. Notwithstanding what has been mentioned herein, such restrictions shall not be applicable for an affiliate of either Party.

4. No Waivers: No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall, any single or partial exercise of any other right, power or privilege preclude such Party's further exercise of any other right or remedy. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

5. Entire Agreement, No Third-Party Rights: This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof, and, supersedes all prior written agreements, understandings and negotiations, both written and oral, between the Parties concerning the subject matter of this Agreement. No representation, inducement, promise, understanding, condition or warranty not set forth herein has been made or relied upon by any Party hereto while entering into this Agreement. Neither this Agreement nor any provision hereof is intended to confer upon any person other than the Parties to this Agreement any rights or remedies hereunder.

6. Further Assurances: In connection with this Agreement, as well as all transactions contemplated by this Agreement, each Party agrees to execute and deliver such additional documents and to perform such additional actions as may be necessary, appropriate or reasonably requested to carry out or evidence the transactions contemplated hereby.

7. Severability: The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of this Agreement, including any such provision, in any other jurisdiction, it being intended that all rights and obligations of the Parties hereunder shall be enforceable to the fullest extent permitted by law. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision which is valid and enforceable, and, most nearly reflects the original intent of the unenforceable provision within reasonable time to ensure that the agreed objectives of the Parties under this Agreement are met.

8. Survival: Termination of this Agreement shall not affect those provisions hereof that by their nature are intended to survive such termination, (including without limitation, its obligations to maintain the confidentiality of information, to cooperate with the Investment Advisor regarding any potential investigations and/or litigations which may arise, and,  to make payment of the Investment Advisory Service Fees, and, any other expenses reimbursable under this Agreement up to the date of termination of this Agreement).

9. Change in Law: In case of any change in applicable laws in India, that has an effect on the terms of this Agreement, the Parties agree that the Agreement would be reviewed, and if deemed necessary by the Parties, renegotiated in good faith to give full force and effect to the commercial intent of the Parties mentioned in this Agreement.

10. Counterparts: This Agreement may be signed in any number of counterparts by the Parties, each of which when so executed shall be an original, but, all such counterparts taken together shall constitute the same document.

17. SCHEDULE 1

Investment advisory services to be provided by the Investment Advisor

1. The Investment Advisor agrees to provide non-binding and non-discretionary Investment Advisory Services, either in writing or through any other visual/verbal mode of communication following the provisions of this Agreement and Applicable Law. The Investment Advice shall contain information for the Recipient to create an investment portfolio, provide an investment strategy to the Recipient and advise on its asset allocation globally. The non-binding and non-discretionary recommendations may contain the set of securities and their respective weights/units in the portfolio. It is clarified, that, the provision of Investment Advisory Services under this Agreement may include the provision of rebalancing of the investment portfolio(s) of the Recipient from time to time (“Rebalancing Recommendation”).

2. Based on the Investment Advice and the Rebalancing Recommendation, as applicable, the Investment Advisor may prepare the recommendation document (“Recommendation Document”) containing details of the recommended Securities/asset allocation for an agreed time period, and, present the same to the Recipient and/or its representatives/point of contact (“POC”) including the Recipients' Custodian and/or Broker. The Recommendation Document may also broadly contain the buy or sell or hold recommendations in respect of the Securities covered therein.

18. SCHEDULE 2

Investment Advisory Fees to be paid by the Recipient to the Investment Advisor

 Unless specified otherwise, the Investment Advisor will charge Advisory fees as described below:

1. Fixed Annual advisory fees: 2.5%

2. The fee is charged quarterly during rebalancing and will be charged to the Assets under Administration (AuA) on the date of rebalancing.

3. The Quarterly AuA fee will be calculated as follows: 

   1.  Quarterly AuA fee = $AuA * (AuA fee % per annum) * (No. of calendar days in the upcoming quarter / 360)

4. All fees are excluding taxes and levies. Service tax and other taxes and levies are charged in addition to the above charges as per the actuals.