Appendix A
Agreement
for
Bankgirot's Clearing and Settlement Service
Bankgirot provides payment services – its Bankgiro Products – within the scope of the Bankgiro
System. Any party fulfilling the participation requirements for Bankgirot (Appendix 4 of the Principal
Agreement) may by entering the Principal Agreement with Bankgirot gain access to the Bankgiro
Products and thereby become a participant in the Bankgiro System. The Principal Agreement also
stipulates that participants in the Bankgiro System shall agree to and uphold Bankgirot's rules, which
are comprised of product agreements, operating agreements, settlement agreements and service
agreements, as well as instructions and other documents concerning the Bankgiro Products and, in
applicable cases, Bank-specific Products. This Agreement for Bankgirot's Clearing and Settlement
Service includes the terms for the Clearing and Settlement of Bankgiro Products and, in applicable
cases, Bank-specific Products and as such comprises the settlement agreement to which the Principal
Agreement refers. This agreement can be entered by the Company and Bankgirot without the
Company entering the Principal Agreement.
Bankgirot even offers Bankgirot's Clearing and Settlement Service for Other Products than the
Bankgiro Products and Bank-specific Products. This agreement also regulates the terms of Clearing
and Settlement for these Other Products.
1 Definitions and Appendices
The defined terms are to be used regardless of grammatical form, such as singular or plural form, with
or without a definite article and so on.
1.1
Definitions
Other Products
Products and services other than the Bankgiro Products and
Bank-specific Products for which Bankgirot provides the
Clearing and Settlement Service in accordance with this
Agreement. See Appendix 3.
Other Transactions
Transactions generated within the scope of Other Products.
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Agreement
This Settlement Agreement for Bankgirot's Clearing and
Settlement Service and associated Appendices.
Settlement
Final settlement of a debt or claim between two Clearing
Members by the transfer of funds between the Clearing
Members’ Accounts at the Settlement Institute.
Settlement Institute
The institution where Settlement will take place for each
currency in accordance with Appendix 4.
Settlement Method
Settlement shall take place using one of two alternative
methods: Bilateral Gross Settlement or Multilateral Net
Settlement. The Settlement Method to be used for each type
of Transaction is defined in Appendix 2, Method and
Schedule.
Settlement Round
All Entered Transactions settled at the Settlement Institute at
the same Settlement Time.
Settlement Time
The point in time when Settlement of a certain type of
Transaction shall take place in accordance with Appendix 2,
Method and Schedule.
Settlement Total
The final total of all Entered Transactions, comprising the
total debt or claim between two Clearing Members,
established at Closing Time where the payments shall be
settled at the same Settlement Time using the same
Settlement Method.
Settlement Transaction
A Settlement Total that Bankgirot shall send to the Settlement
Institute. See also section 1.2.1.3 of the Procedure
Description.
Settlement Liquidity
An amount in the Clearing Member’s Account at the
Settlement Institute that shall cover the Clearing Member's
(and any Indirect Clearing Members') payment obligations at
each applicable Settlement Time.
Bank Day
All days except Saturdays, Sundays, Twelfth Night, Good
Friday, Easter Monday, First of May, Ascension Day,
Sweden's National Day, Midsummer Eve, Christmas Eve,
Christmas Day, Boxing Day, New Year's Eve and New Year's
Day (all according to the Swedish calendar).
Bank Customer
A customer of the Participant that in accordance with an
agreement with said Participant utilises one or more
Products.
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Bankgiro Products
The payment services provided by Bankgirot within the scope
of the Principal Agreement and which fall under the definition
of Bankgiro Products in the Principal Agreement. The
Bankgiro Products provided are specified in Appendix 3.
The Bankgiro System
The infrastructure shared between Bankgirot and the banks
for processing payments using the Bankgiro Products and,
where applicable, Bank-specific Products.
Bankgiro Transactions
Transactions generated within the scope of the Bankgiro
Products.
Bank-specific Product
A product or service that is not a Bankgiro Product but which
is provided by Bankgirot within the scope of the Principal
Agreement and which falls under the definition of a Bankspecific Product in the Principal Agreement.
Bankgirot
Bankgirocentralen BGC AB
Appendix
Each of the appendices to this Agreement listed in section
1.2.1.
Bilateral Gross Settlement
The Settlement Method used in bilateral Flows and which
entails the Participant paying the Settlement Total that said
Participant is due another Participant regardless of whether
the receiving Participant shall at the same time pay a
Settlement Total to the remitting Participant.
Block
A stop on all incoming not yet Entered Transactions from a
Participant or an Indirect Clearing Member and their
respective Bank Customers.
The Company
The Participant that has signed this copy of the Agreement.
Clearing
Compilation and reporting of the mutual obligations between
two Participants including, in applicable cases, any Indirect
Clearing Members.
Clearing Manager
The person in the Company's organisation who is responsible
for clearing activities. See Appendix 5.
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Clearing Information System
The information system described in Bankgirot's Clearing
Information System agreement and its appendices and which
Bankgirot owns and provides in accordance with the
agreement.
Clearing Member
A Participant that has an Account at a Settlement Institute
where said Participant settles its payments and, in applicable
cases, those of its Indirect Clearing Members in the role of
Clearing Agent.
Clearing Agent
A Clearing Member that has an agreement with an Indirect
Clearing Member for making Settlement at a Settlement
Institute on behalf of the Indirect Clearing Member.
Clearing and Settlement System
Bankgirot's computer system for the provision of the Clearing
and Settlement Service.
Clearing and Settlement Service
The service that Bankgirot shall carry out in accordance with
this Agreement. The service is described in greater detail in
Appendix 1, Procedure Description.
Participant
Any company that has signed a Clearing and Settlement
Agreement with Bankgirot.
Disruption
When a Clearing Member, Settlement Institute or Bankgirot
suffers a disruption and has reported this fact to the
Settlement Institute in accordance with the Settlement
Institute's rules.
Escalation Period
The time period which begins when the Ordinary Settlement
Period has concluded and which ends with Settlement
Transactions being cancelled when the Settlement Institute
closes or at the Agreed last Settlement Time for multilateral
Flows.
Default
When a Participant cannot create a Settlement Liquidity in its
Account at the Settlement Institute in due time because of
liquidity problems for reasons other than a Disruption at the
Participant or any other Participant.
Default Procedure
The procedures that shall be followed by Bankgirot and
Participants in case of a Default in accordance with the
stipulations of this Agreement and the Procedure Description.
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Flow
A grouping of Products that are encompassed by the Clearing
and Settlement Service.
Approved Transaction
A Transaction that has been checked to fulfil the
requirements stated in the applicable agreements for each
Product and the Banking Sector Common Layout. See also
section 1.2.1.1 of the Procedure Description.
Principal Agreement
An agreement (Bankgirot's Principal Agreement) between
Bankgirot and direct participants in the Bankgiro System for
Bankgiro Products and Bank-specific Products.
Indirect Clearing Member
A company that has signed an agreement with a Clearing
Member wherein the Clearing Member shall act as a Clearing
Agent for the company and which the Clearing Agent has
registered with Bankgirot.
Entered Transaction
An Approved Transaction that can no longer be recalled or
altered and which thereby has been entered into the Clearing
and Settlement System. See also section 1.2.1.2 of the
Procedure Description.
Account
The account of a Clearing Member or, in the case of an
Indirect Clearing Member, a Clearing Agent at the Settlement
Institute. In the RIX system the Account is the same as BGC
LOM.
Method and Schedule
Bankgirot's current description of Settlement Times,
Settlement Methods and Cancellation Times for the Clearing
and Settlement Service. The current Method and Schedule
can be found in Appendix 2.
Multilateral Net Settlement
A Settlement Method used for multilateral Flows and which
entails the Settlement of all Settlement Totals in a Settlement
Round.
Party
Bankgirot or the Company.
Product
The products, consisting of Bankgiro Products, Bank-specific
Products and Other Products, that are encompassed by the
Clearing and Settlement Service. See Appendix 3.
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Registration Information
Information about Bank Customers that the Company
engages Bankgirot to store and which is registered by the
Company or Bankgirot so that Bankgirot is able to fulfil its
obligations under the Agreement.
Procedure Description
Bankgirot's current description of the various elements of the
Clearing and Settlement Service, including the Parties'
respective commitments in the various processing stages.
Appendix 1 contains the current Procedure.
Closing Time
The time at which Bankgirot closes the Settlement Round, as
described in Appendix 1.
Transaction
A transaction sent to Bankgirot, in accordance with the
current agreements for each Product, from a Participant or a
Participant's Bank Customer, Indirect Clearing Member or
Indirect Clearing Member's Bank Customer for Clearing and
Settlement in accordance with this Agreement.
1.2
Agreements and Appendices
1.2.1 The following Appendices comprise an integral part of the Agreement.
Appendix 1
Procedure Description
Appendix 2
Method and Schedule
Appendix 3
List of Bankgiro Products and Other Products in
Flows and Bank-specific Products
Appendix 4
Company-specific Information including, where
applicable, a list of the Company's Bank-specific
Products
Appendix 5
Contacts and Contact Information
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1.2.2 In signing this Agreement the Company gains access to Bankgirot's Clearing and
Settlement Service. With the exception of the company-specific information in Appendices
4 and 5, this Agreement shall be drawn up identically for all Participants.
1.2.3 Information specific to the Company is specified in Appendices 4 and 5. This information
is subject to change and such changes are made effective by the Company and Bankgirot
jointly signing a new Appendix, with reference to the previous Appendix which then
becomes invalid.
1.2.4 The Agreement is part of Bankgirot's rules in that it regulates the Clearing and Settlement
of Bankgiro Products and Bank-specific Products. Should any stipulation of the
Agreement deviate from the stipulations of the Principal Agreement the stipulations of the
Agreement are to take precedence.
2
3
Prerequisites for Using the Clearing and Settlement
Service
2.1
One prerequisite for participation in the Clearing and Settlement System, and as such
even for being able to be a party to this Agreement, is that the requirements of Chapter
21, Section 1 of the Swedish Securities Market Act (2007:528) and the requirements of
Section 8 of the Swedish Systems for Settlement of Obligations on the Financial Market
Act (1999:1309) are fulfilled.
2.2
Bankgirot provides the Clearing Information System to the Participants in the Clearing and
Settlement System so that they are able to check Settlement Totals for themselves and,
where applicable, for their Indirect Clearing Members. For the Participants, connection to
the Clearing Information System – through the signing of this agreement for the same – is
a prerequisite to be able to utilise the Clearing and Settlement Service.
General Information on the Parties' respective
commitments in the Clearing and Settlement Service
3.1
The Company shall enter an agreement with the Settlement Institute for making
Settlement at the Settlement Instituten.
3.2
Bankgirot shall provide the Company with the Clearing and Settlement Service under the
terms of this Agreement.
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3.3
Before Bankgirot can provide the Company with the Clearing and Settlement Service, the
Company shall ensure that it has an Account at the relevant Settlement Institute.
3.4
The Company shall ensure that an Account is opened at the Settlement Institute(s)
required for Settlement in the currencies the Company wishes to use. Appendix 4
specifies which Settlement Institutes and currencies are handled in Bankgirot's Clearing
and Settlement Service for the Company.
3.5
In good time before the Clearing and Settlement Service is provided, the Company shall
inform Bankgirot that the Company has been approved by the Settlement Institute at
which Settlement is to take place. The Company shall be able to confirm such approval by
presenting the confirmation received from the Settlement Institute to Bankgirot upon
request.
3.6
Before Settlement in euro can take place, the Company shall ensure that it is registered in
Bankgirot's Closed User Group, "BGCEURO", at SWIFT in order for SWIFTNet FIN Inform
to work.
3.7
The Clearing and Settlement Service is described in greater detail in Appendix 1,
Procedure Description. This includes the respective commitments of Bankgirot and the
Company in the various processing stages of the Clearing and Settlement Service. The
Company's primary commitment is to ensure that the requisite Settlement Margin is
available in the Company's Account at the Settlement Institute at each Settlement Time.
3.8
In cases where Bankgirot or the Company decides to resort to the contingency procedure,
said Party is obligated to follow the agreed contingency procedures specified in the
Procedure Description.
3.9
When use of the Clearing and Settlement Service begins, and as the need arises due to
changes thereafter, the Company shall inform Bankgirot of certain specific information
about the Company. This information shall be documented and appended to the
Agreement as Appendix 4. Bankgirot must be notified in writing of changes to this
information no later than thirty (30) days before the changes come into effect.
3.10 The Company shall appoint a Clearing Manager and list this person in Appendix 5.
4
Proxy Method for Settlement in Swedish kronor (SEK)
4.1
For Transactions in SEK Bankgirot sends, on behalf of the Participant, Settlement
Transactions to the Settlement Institute chosen by said Participant ("Proxy Method").
Consequently, the Proxy Method means that under this Agreement the Participant
commissions Bankgirot to send Settlement Transactions to a Settlement Institute on
behalf of said Participant.
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5
6
7
Remitting Bank Method for Settlement in euro (EUR)
5.1
For Transactions in euros Bankgirot sends Settlement Transactions to the Participant.
Settlement is made from the Remitting Bank (see definition below) to the receiving
Participant's EUR account in the TARGET2 system. The Remitting Bank is the Participant
to be debited in the concerned Settlement Round ("Remitting Bank"). The Remitting
Bank's account is provided as a BIC code. See Appendix 4.
5.2
For Transactions in EUR the Remitting Bank Method applies. Only one type of Flow can
occur in the Remitting Bank Method – Bilateral Flows.
5.3
Bankgirot's format for Settlement Transactions in the Remitting Bank Method is described
on tab 20 of the Banking Sector Common Layout.
Changes to the Clearing and Settlement Service
6.1
Bankgirot has the unilateral right to implement changes to the Clearing and Settlement
Service necessary: (i) for Bankgirot to comply with laws, ordinances, regulations and
government directives; (ii) for security reasons; or (iii) due to changed regulations at the
Settlement Institute or a change in Settlement Institute. Bankgirot shall immediately inform
the Company of such changes before the changes are implemented to the extent the
Company is affected.
6.2
In addition to the stipulations of section 6.1 above, Bankgirot has the unilateral right to
make minor changes and additions to the Appendices. Bankgirot shall immediately inform
the Company of such changes or additions before they are implemented to the extent the
Company is affected.
6.3
Other changes are agreed between the Parties, taking into account sections 1.2.3 and
1.2.4. Such other changes to the Agreement shall be made in writing and signed by
authorised signatories for both Parties to be binding.
Indirect Clearing Member and Clearing Agent
7.1
The Company is entitled to offer the Clearing and Settlement Service to one or more
Indirect Clearing Members (ICLM) at its own risk and on its own account. The Company
then acts as a Clearing Agent for the Indirect Clearing Member.
7.2
Bankgirot does not enter an agreement for the Clearing and Settlement Service with
Indirect Clearing Members, rather it falls to the Clearing Agent in its agreement with the
Indirect Clearing Member to obligate said Indirect Clearing Member to, for example, abide
by the stipulations on confidentiality in sections 14.1–14.3 below and to regulate the
deregistration procedure in a manner that is in keeping with this Agreement.
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7.3
If the company wishes to use its right under section 7.1 to connect an Indirect Clearing
Member that is not already an Indirect Clearing Member via another Participant, the
Company shall inform Bankgirot of this in writing, specifying the new Indirect Clearing
Member in Appendix 4. The time at which a new Indirect Clearing Member is connected to
the Participant is decided by Bankgirot in consultation with the Company/Clearing Agent
and the Indirect Clearing Member.
7.4
If the Company wishes to connect an Indirect Clearing Member that is connected via
another Participant, the Company shall inform Bankgirot of the change of circumstances
by specifying the Indirect Clearing Member in Appendix 4. The written notification must be
received by Bankgirot no later than one (1) month before the change comes into effect. If
the Company wishes to conduct tests between Bankgirot and the Company as a
consequence of the connection, Bankgirot must be informed at least four (4) months
before the change comes into effect.
7.5
The Company can deregister an Indirect Clearing Member by contacting Bankgirot in
writing. With the exceptions provided in section 7.8, Bankgirot shall receive notification at
least four (4) months before the Indirect Clearing Member is to be deregistered. If the
deregistration is to be made in conjunction with connection to another Participant,
Bankgirot must be informed at least one (1) month before the Indirect Clearing Member is
to be deregistered. Once Bankgirot has received the Company's deregistration request, it
falls to Bankgirot to conduct the deregistration in accordance with said request.
7.6
Bankgirot agrees within the scope of the Clearing and Settlement Service to process the
Indirect Clearing Member's Settlement Transactions reported separately from the Clearing
Agent's Settlement Transactions. At Settlement Time Bankgirot sends the Settlement
Transactions for both the Clearing Agent and the Indirect Clearing Member to the
Settlement Institute for Settlement via the Clearing Agent's Account.
7.7
The Company is responsible for its debt to Bankgirot and all other Participants as well as
for the share of the Settlement Transaction attributable to the Indirect Clearing Member. In
this context the Company shall have the right to claim the same limitations of liability that
the Company is entitled to claim for its own part in accordance with section 11 below.
7.8
If the Company prematurely terminates its agreement with the Indirect Clearing Member
the Company can request that Bankgirot, at the time stipulated in section 7.9 below or at a
later time specified by the Company (and which falls before the time specified in section
7.5 above), shall deregister the Indirect Clearing Member. The Company's request shall
be made by the contact specified by the Company in Appendix 5 by telephone or in some
other suitable manner and then immediately confirmed in writing by e-mail or fax (see
Appendix 5 for contact information). Bankgirot shall then deregister the Indirect Clearing
Member in accordance with the Company's request. Bankgirot is in no way responsible for
assessing the grounds for deregistration or whether the Company in its relation with the
Indirect Clearing Member has the right to request deregistration. The Company shall free
Bankgirot and other Participants from liability for any claims the Indirect Clearing Member
may direct at Bankgirot and/or Participants due to such deregistration. Should the Indirect
Clearing Member direct such claims at Bankgirot, the Company shall assume
responsibility for representing Bankgirot in the dispute and cover all costs. The Company
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agrees to compensate Bankgirot for any costs and damages Bankgirot is liable to pay due
to a settlement or court order.
7.9
Bankgirot shall implement Blocking of all Transactions from the Indirect Clearing Member
and its Bank Customers as soon as possible, and no later than two (2) hours, after
receiving written confirmation of the request in accordance with section 7.8 above.
Entered Transactions will, however, be executed.
8 Managing Defaults
9
8.1
If any Participant Defaults the Parties shall take the measures specified in the Default
Procedure while taking into account the stipulations below.
8.2
The Default Procedure is only invoked and a Participant is only considered to have
defaulted when said Participant cannot create Settlement Liquidity in its Account at the
Settlement Institute in due time because of liquidity problems for reasons other than a
Disruption at the Company or any other Participant.
8.3
When demanded by Bankgirot, the Company is obligated to implement the agreed Default
Procedure.
8.4
When a Default occurs, either when discovered by Bankgirot or when Bankgirot is
informed by the Company, Bankgirot is obligated to implement the agreed Default
Procedure.
8.5
Neither the Company nor Bankgirot may deviate from the agreed Default Procedure. If the
Company does not follow the agreed Default Procedure Bankgirot shall immediately
contact the Company and request that the Company initiate the procedure without delay.
If despite Bankgirot's request the Company fails to follow the agreed Default Procedure
Bankgirot has the right to immediately exclude the Company from Bankgirot's Clearing
and Settlement Service.
8.6
Bankgirot's obligations in case of a Default are limited to the stipulations of this
Agreement. Consequently, Bankgirot is in no way liable for any amounts that a Participant
is required to pay under the Default Procedure.
Managing Disruptions
9.1
If a Participant cannot create Settlement Liquidity in its Account at the Settlement Institute
due to a Disruption, though never due to Defaulting, the situation shall instead be handled
by initiating the contingency procedures established by the Settlement Institute.
9.2
If Bankgirot cannot deliver Bankgirot's Clearing and Settlement Service due to a
Disruption at Bankgirot the situation shall be handled by initiating the contingency
procedures specified in Appendix 1.
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9.3
If the Settlement Institute suffers a Disruption and the Settlement Institute's system is not
operational Bankgirot has the right to deviate from ordinary processing in accordance with
the special contingency procedure described in Appendix 1, section 2.5.3. In this situation
Bankgirot acts only if it has been commissioned by the Participants in accordance with the
stipulations of Appendix 1, section 2.5.3 and the deviation from ordinary processing is
made on the condition that the Participants unanimously agree to free Bankgirot from
liability for any damages that may arise during or as a result of the use of the contingency
procedure.
9.4
If the Settlement Institute suffers a Disruption Bankgirot cannot be held responsible for
maintaining the delivery of Bankgirot's Clearing and Settlement Service in accordance
with Appendix 2.
9.5
Bankgirot is not liable for damages resulting from a Disruption at the Settlement Institute
or another Participant.
9.6
Bankgirot is not liable for damages resulting from disruptions in the SWIFT system, RIX
Online or a Participant's connection to SWIFT.
10 Information Obligation
10.1 The Company shall immediately inform Bankgirot on becoming aware of circumstances
that can result in the Company, due to liquidity problems, not being able to create
Settlement Liquidity in its Account at the Settlement Institute in good time in accordance
with Method and Schedule.
10.2 A Party shall immediately inform its counterpart when made aware of circumstances that
can result in the counterpart suffering a Disruption.
10.3 In accordance with the Default Procedure of Appendix 1 Bankgirot shall inform
Participants, Finansinspektionen (the Swedish Financial Supervisory Authority) and the
Riksbank of failed Settlement during the Escalation Period.
10.4 Bankgirot has the right to inform concerned Participants and Bank Customers of the
Disruptions in the Products that arise in conjunction with failed Settlement or Defaulting.
11 Responsibility and Division of Responsibility
11.1
Failed Settlement
11.1.1 Failed Settlement is when Settlement is not made in time in accordance with the
Settlement Times specified in Appendix 2 and the Escalation Period is initiated.
11.1.2 None of the Parties can direct any claims against each other for compensation for
damages, such as interest compensation, due to failed Settlement under this Agreement.
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Any claims by the Company for interest compensation in case of failed Settlement can
never be directed at Bankgirot, but only at other Participants, and in such cases based
only on any other agreements between said parties. Bankgirot shall at the Company's
request assist, to a reasonable extent, in preparing documentation in cases where the
Company cannot prepare the requisite documentation.
11.1.3 In case of failed Settlement delayed until the following Bank Day Bankgirot can at the
Company's request provide a report of the Company's Transactions delayed to the
following Bank Day. The report includes the amounts of the Transactions but does not
include any interest and, as such, no amounts of interest compensation.
11.2
Additional information on Bankgiro Transactions
11.2.1 If the Party that signed the Principal Agreement does not fulfil its obligations under this
Agreement in conjunction with handling Bankgiro Transactions and this results in
damages other than damages due to delayed Settlement, the Party shall compensate the
affected counterpart. The stipulations of section 4 of the Principal Agreement on
responsibility and division of responsibility shall apply.
11.3
Additional information on Other Transactions
11.3.1 If the Party through negligence breaches this Agreement in conjunction with handling
Other Transactions and this results in damages other than damages due to delayed
Settlement, the Party shall compensate the direct damages to the affected counterpart.
Compensation shall not include compensation for indirect damages such as loss of
earnings, indirect losses or consequential losses. Bankgirot's liability under this
stipulation is limited to a total of 35 basic amounts in accordance with the Swedish
National Insurance Act (1962:381) for each calendar year. Bankgirot shall at the
Company's request assist, to a reasonable extent, in preparing documentation in cases
where the Company cannot prepare the requisite documentation.
11.4
Additional information on Defaulting in multilateral Flows
11.4.1 In case of a Default in multilateral Flows, special payment liability applies in accordance
with Appendix 1, section 2.4.2.1 for Participants using the Products included in the Flow.
The distribution keys for each Product are provided in Appendix 4. If the Company is a
Clearing Agent it shall assume responsibility for paying both its own share of the amount
and that of any Indirect Clearing Members specified in Appendix 4 to Bankgirot.
11.5
Miscellaneous
11.5.1 A Party that in cases other than those described in sections 11.1–11.4.1 breaches this
Agreement shall compensate any resultant direct damages suffered by the counterpart.
Compensation shall not include compensation for indirect damages such as loss of
earnings, indirect losses or consequential losses. Bankgirot's liability under this
stipulation is limited to a total of 35 basic amounts in accordance with the Swedish
National Insurance Act (1962:381) for each calendar year.
11.6
Force Majeure
11.6.1 A Party is not liable for damages due to Swedish or foreign legal enactments, measures
taken by Swedish or foreign government authorities, acts of war, strikes, blockades,
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boycotts, lockouts or other similar circumstances. As regards strikes, blockades, boycotts
and lockouts, the clause applies even if the Party is subject to or takes such industrial
actions. Should a Party be prevented from implementing an action due to any of the
circumstances described above, said action may be postponed until the time it can be
implemented.
11.6.2 If the fulfilment of considerable aspects of the Agreement is prevented for a period of
more than three (3) months due to any of the circumstances described in section 11.6.1,
the other Party has the right to terminate the Agreement in writing effective from the date
specified by the Party serving such notice.
12 Subcontractors
12.1 The Parties are entitled to engage subcontractors and/or consultants and in conjunction
with this to disclose Directory Information, including Personal Data, for processing by such
third parties or their subcontractors. The Parties are responsible for their respective
subcontractors/consultants in the same way as for their own work.
13 Responsibility for Personal Data
13.1 The Company is the controller of personal data in accordance with the Swedish Personal
Data Act (1998:204) for the Directory Information or other information comprising personal
data in accordance with said Act and which Bankgirot processes on behalf of the
Company under this Agreement. The Company is responsible for ensuring that it has
obtained consent and has the legal entitlement to transfer the Personal Data to Bankgirot
and Bankgirot's subcontractors for processing under this Agreement.
13.2 Bankgirot processes the Personal Data in its capacity as a personal data assistant.
Bankgirot shall process the Personal Data only in accordance with instructions from the
Company.
13.3 Bankgirot shall take suitable technical and organisational measures to protect the
Personal Data. Bankgirot shall upon request inform the Company of the security
measures that have been taken.
13.4 Bankgirot shall at the Company's request immediately correct or delete Personal Data that
is incorrect or no longer applicable. Personal Data may not be disclosed to third parties
other than in accordance with this Agreement.
14 Miscellaneous
14.1 The Party agrees not to disclose to third parties the counterpart's trade secrets,
information that is protected by banking confidentiality or other confidential information
and knowledge of which the Party is made aware through the Agreement, such as
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information on the Clearing and Settlement Service, Bankgirot, other Participants and their
Bank Customers, and which prior to this was not available to the Party and which other
than through breach of this Agreement is not and will not become public.
14.2 The exception to section 14.1 is information that the Party shall provide to its Indirect
Clearing Member or which the Party is obligated to disclose under law, regulation or
government directive.
14.3 Section 14.1 does not apply to Participants as regards information covered by stipulations
on public documents, freedom of information and confidentiality under the Swedish
Freedom of the Press Act, the Swedish Secrecy Act and any related laws and ordinances.
Instead, confidentiality in such cases falls under the stipulations of the Swedish Freedom
of the Press Act, the Swedish Secrecy Act and any related laws and ordinances.
14.4 The Agreement may not be transferred by either of the Parties without prior written
consent for such transfer from the counterpart.
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15 Agreement Period and Premature Termination
15.1 This Agreement applies as of 9 February 2009 and runs until 31 December 2009 or an
earlier date if the Parties agree that the Agreement shall be terminated and replaced with
a new agreement for clearing and settlement services. If the Agreement is not replaced or
terminated by either party with at least six (6) months notice before 31 December 2009,
the Agreement shall be extended by a period of two (2) years at a time unless the
Company or Bankgirot provides written notice of termination no later than one (1) year
before the end of the current agreement period.
15.2 If Bankgirot or the Company:
i)
considerably neglects its commitments under this Agreement;
ii)
ceases to pursue its operations; or
iii)
enters liquidation, is declared bankrupt, files for bankruptcy, declares itself insolvent or
is subject to composition proceedings, company reorganisation or similar proceedings
the counterpart shall have the right to terminate the Agreement in writing with immediate
effect.
15.3 In the case specified in item i) of section 15.2 above, the party serving notice shall prior to
termination of the Agreement inform the counterpart in writing of the intention to exercise
its rights under the stipulation and offer the counterpart the opportunity to provide an
explanation and to within a reasonable time, though no longer than thirty (30) days, of
receiving such warning implement corrective measures.
15.4 If the Company ceases, in applicable cases, to be a Participant in the Bankgiro System
and, in applicable cases, in systems for Other Products, this Agreement shall also be
terminated with immediate effect.
15.5 If the Company does not fulfil the requirements set out in section 2.1 of this Agreement,
Bankgirot has the right to terminate the Agreement in writing with immediate effect, as well
as the right to immediately cease providing the Clearing and Settlement Service.
15.6 If the Company is excluded as a Participant at the Settlement Institute and/or for some
other reason no longer has an Account at the Settlement Institute, Bankgirot has the right
to terminate the Agreement in writing with immediate effect, as well as the right to
immediately cease providing the Clearing and Settlement Service.
15.7 When the Default Management Period is begun in accordance with Appendix 1, the
Agreement with the defaulting Participant is automatically cancelled. Default Management
shall, however, be followed to completion in accordance with the Agreement and the
stipulations of the Agreement shall continue to apply until all matters between the Parties
regulated by the Agreement have been settled in full.
Rev. 30 January 2009
16 (19)
Governing Law
16
16.1 The Agreement shall be interpreted and applied in accordance with Swedish law. Swedish
law shall apply to the Clearing and Settlement System.
Disputes
17
17.1 Disputes between Bankgirot and one or more Participants (including the Company) that
have signed the Principal Agreement in relation to the establishment, interpretation or
application of this Agreement or any related legal relationship shall be resolved in
accordance with the stipulations on dispute resolution of the Principal Agreement.
17.2 In cases where a dispute concerning the establishment, interpretation or application of this
Agreement or any related legal relationship arises between:
i.
Bankgirot and one or more Participants that have not signed the Principal Agreement; or
ii.
Bankgirot and one or more Participants that have not signed the Principal Agreement and
one or more Participants that have signed the Principal Agreement
the dispute shall be resolved in accordance with sections 17.3–17.14 below.
17.3 In signing this Agreement, the Company becomes a Participant in the Clearing and
Settlement System. Bankgirot has entered or will enter equivalent settlement agreements
with other companies, which as such are or will become Participants in the Clearing and
Settlement System. Bankgirot agrees to enter Settlement Agreements with all current and
future Participants with identical stipulations as regards the dispute resolution covered
under section 12 herein. Bankgirot, the Company and all other Participants are referred to
as Disputing Party/Parties in this clause. Disputes between two or more Disputing Parties
concerning the establishment, interpretation or application of this Agreement or any
related legal relationship ("Dispute(s)") shall be resolved as follows.
17.4 Initially, Disputes shall be resolved through negotiations between the concerned Disputing
Parties. Dispute negotiations shall be called for by written notification to the concerned
Disputing Parties and shall be held forthwith.
17.5 If the concerned Disputing Parties agree, the Dispute can be referred for mediation in
accordance with the Rules of the Mediation Institute of the Stockholm Chamber of
Commerce.
17.6 If the Disputing Parties are not able to settle the Dispute within ninety (90) days of the
Disputing Parties receiving the call for negotiations in accordance with section 12.4 above,
Rev. 30 January 2009
17 (19)
the Dispute shall be finally settled via arbitration in accordance with the Rules of the
Arbitration Institute of the Stockholm Chamber of Commerce while taking into account the
following.
17.7 If the notification encompasses several Disputing Parties, the Institute shall decide that
the Disputes shall be resolved together in a single arbitration process if considered
appropriate.
17.8 If the notification only encompasses certain Disputing Parties and these Disputing Parties
(claiming party/parties and respondent party/parties) believe that other Disputing Parties
may also be affected by the concerned Dispute, the claiming party/parties and the
respondent party/parties can request that the other affected Disputing Parties shall be
informed that arbitration proceedings have been initiated by the Arbitration Institute of the
Stockholm Chamber of Commerce (the "Institute") serving said Disputing Parties with
copies of the notification. The concerned Disputing Parties shall be served notification
before the Institute refers the case to the arbitral tribunal. If a Disputing Party wants to
enter ongoing arbitration proceedings concerning a Dispute between other Disputing
Parties, the Disputing Party has the right, without the need to observe the above
obligation to attempt negotiations, to issue a request for such entry to the Institute in the
form of a call for arbitration within the time frame stipulated by the Institute. The Institute
shall decide whether to permit entry by considering whether it is appropriate to deal with
the Disputes together.
17.9 If a Disputing Party issues a request for entry after the time stipulated by the Institute, the
Institute shall decide whether to permit entry. In its decision, the Institute shall consider
whether it is appropriate to deal with the Disputes together, the time at which the request
for entry was received, the inconvenience entry may cause other Disputing Parties and
other relevant circumstances.
17.10 If after arbitration proceedings have been called for a Dispute arises between a party in
the ongoing proceedings and another Disputing Party that is not a party to the ongoing
proceedings, the first Disputing Party may request that the second Disputing Party shall
enter the ongoing arbitration proceedings, without observing the above obligation to
attempt negotiations. If such a request is received, the Institute shall decide whether to
admit entry. In its decision, the Institute shall consider whether it is appropriate to deal
with the Disputes together, the time at which the request for entry was received, the
inconvenience entry may cause other Disputing Parties and other relevant circumstances.
If the Institute decides to admit entry, the aforementioned Disputing Party is obligated to
enter the ongoing arbitration proceedings.
17.11 Before the Institute makes its decision as detailed above, the concerned Disputing Parties
and, in applicable cases, the arbitral tribunal, shall be consulted.
17.12 If the Disputes have been combined, the Institute may decide that one or more Disputes
be dealt with separately. Such a decision may only be issued after consulting the
concerned Disputing Parties and, in applicable cases, the arbitral tribunal.
Rev. 30 January 2009
18 (19)
17.13 The arbitral tribunal shall comprise three (3) arbitrators, all of whom shall be appointed by
the Institute. Arbitration shall take place in Stockholm.
17.14 The Disputing Parties agree, unless under legal obligation, not to disclose information
about negotiations, arbitration proceedings or mediation, or the occurrence and contents
of arbitration arising due to Disputes.
18 Previous Agreements
18.1 This Agreement, once effective, replaces all previous agreements and supplementary
agreements, oral and written, entered by the Parties, including appendices to Bankgirot's
Clearing and Settlement Service, which also cease to apply.
______________________________
This Agreement has been signed in duplicate and each Party has received an identical copy.
Stockholm
Stockholm 30 January 2009
[Company Name]
Bankgirocentralen BGC AB
CIN
CIN 556047-3521
______________________________
______________________________
Birgitta Simonsson
______________________________
______________________________
Christina Friberg
Rev. 30 January 2009
19 (19)