This Trust Deed is made between:
(1) SMARKETS (CLIENTS) LIMITED (company number 11184989) whose registered office is at 1 Commodity Quay, St Katharine Docks, London, E1W 1AZ (the "Trustee", which expression shall include the trustee or trustees for the time being of this Deed); and
(2) SMARKETS (MALTA) LIMITED (registered in Malta with company number 44795) whose registered office is at Level 7, Ir-Rampata'san, Giljan Street, St Julians STJ1062, Malta (the "Company").
(A) The Company and the Group Companies provide Betting Services to Customers. In order to use the Betting Services each Customer must contribute funds into the Trust which shall be held by the Trustee subject to the trusts, powers and provisions in this Deed.
(B) This Deed confirms the terms on which the Trustee holds the Trust Fund on behalf of the Customers, the Company, the Banks, the Trustee itself and the Group Companies.
Now this deed witnesses and it is hereby agreed as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Deed, unless the context otherwise requires:
"Allocated Share" has the meaning given in clause 9.1;
"Available Amount" means the aggregate amount each Customer is permitted to stake or offer to stake on a bet from time to time calculated in accordance with clause 9.2;
"Banks" means such bank(s) as the Company and/or the Trustee may conduct merchant services business with from time to time and which are designated by written agreement between the Trustee on the one hand and the Banks for the time being on the other hand as a "Bank" for the purposes of this Deed;
"Bank's Share" means the Banks' share in the Trust Fund as calculated in accordance with clause 7.3;
"Beneficiary" means each or any of the Customers, the Company, the Trustee itself, the Group Companies and the Banks;
"Beneficiary's Share" means the share each Beneficiary has in the Trust Fund which:
(a) in the case of a Customer, shall be the Customer's Share;
(b) in the case of the Company, shall be the Company's Share;
(c) in the case of a Group Company, shall be the Group Company's Share; and
(d) in the case of a Bank, shall be the relevant portion of the Banks' Share applicable to the specific Bank;
"Betting Services" means the betting and gaming facilities and associated services provided from time to time by the Company and by Group Companies;
"Business Day" means any day (other than a Saturday or Sunday or a public holiday) on which banks generally are open for business in the City of London;
"Chargebacks" means any reversals on credit or debit card payments requested by any Customer and processed by a Bank or any relevant third party;
"Company's Share" means the Company's share in the Trust Fund calculated in accordance with clause 7.1;
"Customer" means any person who uses the Betting Services from time to time (which where the context allows includes any Group Company);
"Customer Exposure" has the meaning given to this term in clause 9.2;
"Customer's Share" means each Customer's share in the Trust Fund calculated in accordance with clause 4;
"Customer Terms" means any Customer Terms as amended from time to time between the Company and/or any Group Company and any other person governing that person's use of the Betting Services;
"Expenses" means all costs, charges and expenses of and incidental to the administration, operation and determination of the Trust;
"Fees" means any sums payable from time to time by a Customer to the Company and/or to any Group Company under any applicable Customer Terms in consideration of provision of the Betting Services;
"Group Company" means a Group Member of the Company (excluding the Company) which provides Betting Services to Customers;
"Group Company's Share" means the share of a Group Company in the Trust Fund calculated in accordance with clause 7.2;
"Group Member" means in relation to a company that company and any company which is or becomes a holding company or subsidiary or subsidiary undertaking (as defined by the Companies Act 2006) or associate (as defined by the Insolvency Act 1986) of that company or holding company of that company;
(a) any interest earned on the Trust Funds as a result of depositing them in a bank account, money market account or deposit account; and
(b) any income or interest earned or payable on any Investment in which the Trust Funds are invested,
in each case at any time received or receivable by the Trustee and forming part of the Trust Fund;
"Investment" means money market bank deposits, certificates of deposit, corporate bonds, commercial paper denominated in sterling and such other categories of investment as may from time to time be agreed by the Trustee on the one hand and the Banks on the other hand as being suitable investments for the Trust Fund on the basis (among other things) that they are low risk in nature;
"Losses" means any amount lost on a settled bet by a Customer using the Betting Services;
"Merchant Services Agreement" means an agreement between the relevant Company and/or Group Company and a Bank under which the Bank agrees to process certain transactions relating to Betting Services;
"Other Amounts" means any monies or other assets received or receivable by the Trustee (whether of a capital nature or otherwise) and forming part of the Trust Fund which are not part of a Customer's Share or Interest;
"Terms and Conditions" means the terms and conditions in respect of the provision of Betting Services as provided on the Website from time to time
"Trust" means the trust established by this Deed (as amended from time to time);
"Trust Fund" means all property (including any cash) for the time being held by the Trustee under the Trust;
"Website" means the website(s) provided from time to time by the Company and/or by Group Companies for provision of the Betting Services; and
"Winnings" means any amount won on a settled bet by a Customer using the Betting Services;
1.2 Clause headings shall not affect the interpretation of this Deed.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors, successors and permitted assigns.
1.6 A reference to a party shall include that party's personal representatives and permitted assigns.
1.7 A reference to writing or written includes fax but not email (unless otherwise expressly provided in this agreement).
1.8 References to clauses are to the clauses of this Deed.
The Trustee hereby declares that it holds the Trust Fund on trust for the benefit of the Beneficiaries (each of whom shall have a beneficial interest in the Trust Fund in an amount represented by its Beneficiary's Share) subject to and in accordance with the provisions of this Deed.
3. CONTRIBUTION OF CUSTOMER FUNDS
3.1 Funds may be contributed by a Customer at any time in accordance with the Terms and Conditions.
3.2 Funds received into the Trust shall (without prejudice to the declaration of trust in clause 2) be held by the Trustee for (among other things) the purpose of providing security for any payment obligations the Customer may incur in connection with the Betting Services and, subject to clause 7.3, for the purpose of providing security for any obligation owed by a Group Company or the Company to the Banks under a Merchant Services Agreement.
3.3 Each Customer will only be able to use Betting Services if he has a sufficient Available Amount held on his behalf by the Trustee to cover any exposure which may arise in connection with his use of the Betting Services.
4. CUSTOMER'S SHARE OF THE TRUST FUND
4.1 Each Customer's Share in the Trust Fund from time to time shall, subject to clause 17.1.7, be an amount equal to the aggregate of all cleared funds received by the Trustee from that Customer together with an amount equal to the aggregate of any Winnings of that Customer, less an amount equal to the aggregate of the following amounts:
4.1.1 any and all sums withdrawn by and/or otherwise paid out to (and received by) such Customer pursuant to clause 11 of this Deed;
4.1.2 Chargebacks initiated by such Customer;
4.1.3 any and all Losses of that Customer;
4.1.4 any and all amounts paid or deducted from a Customer's Share pursuant to clause 6.1 in respect of Fees on behalf of that Customer; and
4.1.5 any and all deductions or taxes required from time to time by law (without prejudice to it being the Customer's responsibility to account for any tax or duty that may be imposed on him as a result of placing bets),
in each case, from the time the Customer first paid funds into the Trust until the relevant time.
5. INTEREST ON THE TRUST FUND AND OTHER AMOUNTS
5.1 Customers are not entitled to receive any Interest or any Other Amounts.
5.2 Interest and Other Amounts shall be held by the Trustee for the benefit of the Company and/or the Group Companies in such proportions as are agreed between them and notified to the Trustee from time to time.
5.3 The Trustee shall be entitled to, and shall, pay Interest and any Other Amounts to the Company and/or Group Companies from time to time.
6. FEES PAYABLE BY THE CUSTOMER
6.1 The amount of any Fees payable by a Customer to the Company or to any Group Company under the relevant Customer Terms (which amount shall be notified to the Trustee by the Company or, as applicable, by the relevant Group Company) shall, upon such fees becoming due and payable, cease to be part of the Customer's Share of that Customer and shall instead be held on trust for the Company or for the Group Company (as the case may be).
6.2 The Trustee shall pay to the Company and to any Group Companies amounts which are payable in respect of Fees to their accounts.
7.1 The Company's Share in the Trust Fund shall be comprised of the aggregate of the following amounts:
7.1.1 any Fees held by the Trustee on behalf of the Company pursuant to clause 6.1; and
7.1.2 subject to clause 8, any Interest or Other Amounts held on behalf of the Company pursuant to clause 5.
in each case, from time to time comprised in the Trust Fund.
7.2 Each Group Company's Share in the Trust Fund shall (without prejudice to any share in the capacity as a Customer) be comprised of any Fees held by the Trustee on behalf of the Group Company pursuant to clause 6 and, subject to clause 8, any Interest and/or Other Amounts held on behalf of the Group Company pursuant to clause 5.
7.3 The Bank's Share in the Trust Fund shall be comprised of any Fees, Interest and Other Amounts (which includes the amount of all and any Chargebacks not paid to the Banks pursuant to clause 13) less any Expenses.
7.4 The Banks' Share shall be vested in and payable to the Banks in priority to the Company Share and the Group Company's Share as set out in clauses 7.1 and 7.2.
The Trustee is entitled to deduct Expenses from Interest and/or Other Amounts unless the Trustee decides to bear such costs, expenses and charges.
9.1 If a Customer makes use of the Betting Services (whether by placing an offer to bet or accepting a bet or receiving services or otherwise) the Trustee shall hold such amount of that Customer's Share (the "Allocated Share") as the Company or, as applicable, the relevant Group Company, notifies it is necessary to cover the Customer's exposure (whether to other Customers or to the Company or to any Group Company) arising from the use of the Betting Services.
9.2 The Available Amount of a Customer will be the Customer's Share reduced by the aggregate of that Customer's Allocated Shares in each case, from time to time (the "Customer Exposure") unless the bet to which the Allocated Share relates is cancelled or is voided, or the Customer wins the bet in which case such Allocated Shares will form part of his or her Available Amount and Customer's Share.
9.3 The Trustee shall provide the Company and (if relevant) any Group Company with up-to-date details of each Customer's Customer Exposure and Available Amount in order that the Company and (if relevant) any Group Company can:
9.3.1 determine whether the Customer is entitled to use the Betting Services in accordance with Customer Terms; and
9.3.2 make such details available to the Customer on the Website.
9.4 The Trustee shall maintain accurate records of each Beneficiary's Share and of each Customer's Customer Exposure and Available Amount at any given time which are capable of being produced promptly in writing.
9.5 A Customer may not withdraw any Allocated Share except as provided for in clause 11.2.
10.1 The Trustee will transfer any Winnings (subject to deduction of any Fees) or Losses by way of addition to or deduction from the amounts representing each Customer's Share following receipt by it of a confirmation from the Company or from the Group Company (as the case may be) of a final result for each bet.
10.2 The Trustee shall be entitled to transfer any amounts which are mistakenly credited or debited by the Trustee whether as Winnings or otherwise to or, as applicable, from a Customer's Share to another Customer's Share in order to correct an error upon the error being noticed.
10.3 Any Winnings or any other amount mistakenly credited to a Customer's Share and subsequently withdrawn by that Customer will constitute a debt owed by that Customer to the Trustee in the amount of the wrongfully attributed sums and shall be paid by that Customer to the Trustee within a timescale reasonably requested by the Trustee.
11. CLOSURE OF ACCOUNTS AND WITHDRAWAL OF FUNDS BY CUSTOMERS
11.1 The Trustee shall have the power to close a Customer's account and to refund the Available Amount to any Customer at any time in its absolute discretion and shall have no obligation to give prior notice to a Customer. The Trustee shall only refund Allocated Shares to a Customer to the extent that Customer would be able to withdraw them under clause 11.2.
11.2 A Customer may at any time withdraw any amount from the Trust Fund up to the Available Amount. A Customer may not withdraw Allocated Shares unless the bets to which they relate have been cancelled, voided or settled in his or her favour. Any sums withdrawn by a Customer will be subject to such deductions as are required pursuant to the terms of this Deed.
11.3 The procedure for withdrawal of funds to be followed by a Customer is set out in the Terms and Conditions. Any Group Company in its capacity as a Customer may also withdraw funds by following such processes agreed with the Company from time to time.
11.4 Any payment made by the Trustee in accordance with such procedures will discharge any obligations of the Trustee in respect of such payment.
12.4 WITHDRAWAL OF FUNDS BY THE COMPANY AND BY GROUP COMPANIES
12.1 The Company or any Group Company shall be entitled to withdraw all or part of the Company's Share or the Group Company's Share (as the case may be) at any time by giving written notice to the Trustee and payment in accordance with the terms of such notice shall discharge the Trustee's obligation in respect of such payment.
12.2 In the event that the value of the assets within the Trust Fund falls below the aggregate of the values of each Customer's Share, the rights of the Company and the Group Companies to withdraw assets pursuant to clause 12.1 shall be suspended until such time as the shortfall ceases to exist.
13. WITHDRAWAL OF FUNDS BY THE TRUSTEE
13.1 Where any contribution of funds by a Customer into the Trust Fund is reversed by way of Chargeback and as a result the Trustee, the Company or relevant Group Company is legally obliged to repay an amount equal to such contribution, the Trustee shall in such circumstances withdraw funds from the relevant Customer's Share for the purpose of funding the repayment to the relevant Bank and, to the extent insufficient funds are available to the relevant Customer, the Trustee shall fund the balance of the repayment to the relevant Bank from the Company's Share and the balance shall constitute a debt owed by the relevant Customer to the Trustee and shall be paid to the Trustee by the relevant Customer within a timescale reasonably requested by the Trustee.
13.2 For the avoidance of doubt, the Trustee may not withdraw any funds from the Trust Fund for the purpose of funding a Chargeback to the extent that such funds comprise funds of Customers other than the relevant Customer.
14.1 The Trustee may terminate the Trust at any time by giving at least five Business Days' notice in writing to the Company.
14.2 Upon termination of the Trust, the Trust Fund shall be distributed in accordance with clause 15.
15. DISTRIBUTION OF THE TRUST FUND ON TERMINATION
15.1 Upon termination of the Trust, distributions shall be made out of the Trust Fund in the following order of priority:
15.1.1 first, in providing for all actual or contingent liabilities of the Trustee in respect of the Trust;
15.1.2 secondly, to each Customer up to an amount equal to the Customer's Share (provided that any distribution to any Group Company that is a Customer shall be subordinated to the distribution of the other Customer's Shares).
15.1.3 thirdly, to the Banks up to an amount equal to the Banks' Share; and
15.1.4 fourthly, to the Company and to each Group Company up to an amount equal to the Company's Share or to the Group Company's Share respectively.
15.2 In the event of a shortfall of assets available for distribution to Customers, the Customers shall (subject to the provisions in clause 15.1.2) share in the shortfall in proportion to each of their shares in the Trust Fund.
15.3 In the event of a shortfall of assets available for distribution to the Company and to Group Companies, the Company and the Group Companies shall share in the shortfall in proportion to each of their shares in the Trust Fund.
15.4 In the event of a shortfall of assets available for the distribution to the Banks, the Banks shall share in the shortfall in such proportions and/or in such priority as shall be designated by written agreement between the Trustee on the one hand and the Banks' on the other hand. In the absence of any such agreement the Banks shall share available assets on a pro rata basis (i.e. equally in proportion to the sums due to them). Nothing in this Trust Deed entitles the Banks to any share of the Trust Fund that is in excess of that held on behalf of the Company and the Group Companies.
16. INSTRUCTIONS TO THE TRUSTEE
16.1 The Trustee shall be entitled to rely upon any directions or any instructions given or purported to be given by a Beneficiary, notwithstanding any error in transmission or that such directions or instructions prove not to be genuine, and (in the absence of manifest error, manifest fraud or manifest forgery) such directions or instructions shall be conclusively deemed to be valid directions or instructions from such Beneficiary to the Trustee for the purposes of this Deed provided that the Trustee may decline to act on any such directions or instructions where in the reasonable opinion of the Trustee they are insufficient, incomplete, inconsistent or not received by the Trustee in sufficient time to act thereon or in accordance therewith and provided further that the Beneficiary shall be responsible for any loss, claim or expense properly incurred by the Trustee for carrying out such directions or instructions.
16.2 The Trustee may refrain from doing anything which would or might in its opinion be contrary to any law of any jurisdiction or any directive or regulation of any agency of any state or which would or might otherwise render it liable to any person and may do anything which is, in its absolute discretion, necessary to comply with any such law, directive or regulation.
17. ADDITIONAL POWERS AND DUTIES OF THE TRUSTEE
17.1 In addition to all the powers vested in trustees by law or statute the Trustee shall have the following powers and may exercise all or any of the same from time to time in such manner and to such extent as it shall think fit:
17.1.1 power to invest the Trust Fund in any bank certificate, money market account, deposit account or in any other Investment;
17.1.2 power to deposit any documents belonging or relating to the Trust for safe custody with any bank, trust company or like institution in [the United Kingdom or Malta];
17.1.3 power to do all such things and to sign, execute and deliver all such deeds and documents as the Trustee may consider are required or may be necessary or incidental to the due administration and control of the Trust Fund or to the due execution or exercise of any of the trusts and provisions hereof;
17.1.4 power to employ and pay any agent in any part of the world and whether a lawyer, accountant or other agent to do any act required to be transacted or done in the execution of the trusts hereof;
17.1.5 power to allot, appropriate, partition or apportion any property whatever which (or the future proceeds of sale of which) are for the time being subject to the trusts hereof in or towards satisfaction of any share or interest (including any share or interest of the Trustee) in the Trust Fund or the income thereof in such manner as the Trustee shall in its absolute discretion consider proper according to the circumstances of the case;
17.1.6 power to apportion or attribute any liability which is properly payable out of the Trust Fund (or any part thereof) to be borne by the Trust Fund (or such part) as the Trustee may in its absolute discretion consider proper according to the circumstances of the case; and
17.1.7 power to make such modifications as the Trustee considers fit to the amount held by the Trustee for a particular Customer (as represented by his Customer's Share) in circumstances where:
220.127.116.11 the Customer has acted dishonestly, fraudulently or is otherwise in material breach of the terms of the applicable Customer Terms; and
18.104.22.168 the Trustee considers that the amount which is held for the Customer (as represented by his Customer's Share) is inaccurate by reason of the dishonesty, fraud or material breach.
17.2 The Trustee shall be entitled to provide and shall provide such information as is requested by any competent authority or the Company without delay in respect of any investigation relating to the breach of applicable law or regulation by any Customer including applicable law or regulation relating to money laundering or the use of proceeds of crime.
18. POWER TO ACT BY A DIRECTOR
The Trustee may, in the execution and exercise of all or any of the trusts and powers vested in it pursuant to this Trust Deed, act by a director for the time being of the Trustee.
19. LIMITATION OF TRUSTEES LIABILITY AND INDEMNITY
19.1 The Trustee shall not be liable for any actions, claims, demands and proceedings brought or made against it or its delegates and all costs, damages, expenses or other liabilities of whatever nature in connection with this Deed or the Trust with the exception of claims and liabilities arising by reason of negligence, fraud or wilful default of the Trustee, its officers or employees.
19.2 The Trustee shall be entitled to indemnify itself from and against all or any losses, liabilities, claims, proceedings, taxes, penalties, fines, costs and expenses incurred by the Trustee in relation to the trusts contained herein from the assets held in the Trust Fund provided that, as regards any liability incurred by the Trustee in respect of a Chargeback, the Trustee shall only be entitled to indemnify itself to the extent that it may withdraw funds from the relevant Customer's Share and/or the Company's Share (as the case may be) in accordance with clause 13.
19.3 The Trustee shall not be responsible for any misconduct on the part of any person appointed by it hereunder or be bound to supervise the proceedings or acts of any such persons.
20. REMUNERATION OF THE TRUSTEE
The Trustee shall be entitled to remuneration (which forms part of the Expenses) in respect of the services it provides under the terms of this Deed on such basis as may be agreed in writing from time to time with the Company.
21. RETIREMENT AND APPOINTMENT OF NEW TRUSTEE
21.1 A Trustee may retire at any time upon five Business Days' notice to the Company without giving any reason. The retirement of a Trustee shall not become effective until a successor trustee or trustees are appointed.
21.2 The Company may appoint a new Trustee at any time which appointment shall take effect on the terms of this Deed.
22.1 No amendment, variation or addition to this Deed shall be effective unless it is in writing and has been signed by the Trustee and the Company and it has the prior written consent of each of the Banks.
22.2 The consent of the Customers shall not be required in relation to any amendment to this Deed which is made to comply with any applicable legal or regulatory requirement or which, in the opinion of the Company acting reasonably, is necessary or desirable to facilitate or enhance the operation of the Trust or the Betting Services.
If any provision of this Deed is held to be invalid or unenforceable, such provision shall (so far as it is invalid or unenforceable) be given no effect and shall be deemed not to be included in this Deed but without invalidating any of the remaining provisions of this Deed.
24.1 Any notice, direction or request or other communication to be given or made to any person pursuant to or for the purposes of any provision of this Deed (other than service of process or any other documents in connection with proceedings in any court in relation to which the provisions of clause 24.3 shall apply) shall be deemed to be given if in writing, signed by or on behalf of the person giving it and served by leaving it or sending it by prepaid recorded delivery or registered post to the appropriate address and for the attention of the relevant person set out in clause 24.4. Any notice so served by post shall be deemed to have been received:
24.1.1 in the case of recorded delivery or registered post, forty eight (48) hours from the date of posting, notwithstanding that it may subsequently be returned undelivered;
24.1.2 in the case of recorded delivery or registered post outside the UK or Malta, five (5) days from the date of posting.
24.2 The Trustee, the Company and each Group Company may also communicate with each other and with any of the Customers by e-mail and any notice, direction, request or other communication to be given or made pursuant to or for the purposes of any provision of this Deed shall be deemed to be given if sent by e-mail to the appropriate e-mail address set out below in the case of the Trustee, the Company and each Group Company or to such e-mail address as is provided by each Customer on registration with the Company and/or the Group Company, as modified from time to time.
24.3 The Beneficiaries irrevocably consent to service of process or any other documents in connection with proceedings in any court by personal service, delivery at any address specified in this Deed, mail or in any other manner permitted by English law, the law of the place of service or the law of the jurisdiction where proceedings are instituted.
24.4 For the purposes of clause 24.1 the appropriate addresses are as follows:
24.4.1 in the case of the Trustee, 1 Commodity Quay, St Katharine Docks, E1W 1AZ provided the notice is marked for the attention of The Company Secretary; and
24.4.2 in the case of the Company, Level 7, Ir-Rampata’san, Giljan Street, St Julians, STJ1062, Malta provided the notice is marked for the attention of The Company Secretary.
24.5 In proving such service it shall be sufficient to prove that the envelope containing such notice was properly addressed and delivered either to the address shown thereon or into the custody of the postal authorities as a pre-paid recorded delivery or registered post letter.
24.6 Notice given to the person or persons for the time being in office as the Trustee as the case may be shall remain effective notwithstanding any subsequent changes in the persons holding such office.
24.7 Notwithstanding clauses 24.1, 24.2, 24.4 and 24.5 any notice, direction or request from any Beneficiary to the Trustee concerning any application of the Trust Fund shall not be deemed sufficiently given or made until actually received by the Trustee.
25.1 Each of the parties to this Deed may assign any of their rights under this Deed without consent of the other parties.
25.2 No Customer shall be entitled to transfer or assign all or any of its beneficial interest or rights as a beneficiary under the Trust and each Customer shall give notice in writing to the Trustee should it propose mortgaging, pledging, hypothecating or otherwise encumbering its beneficial interest or rights (except by using the Betting Services and creating a Customer Exposure).
26.1 The perpetuity period applicable to the Trust created by this Deed shall be 80 years from the date hereof.
26.2 The Trustee may give or withhold its consent to such proposed mortgage, pledge, hypothecation or other encumbrance by any Beneficiary and may impose such conditions as the Trustee may think fit.
27. GOVERNING LAW AND JURISDICTION
27.1 This Deed and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
27.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Deed or its subject matter or formation (including non-contractual disputes or claims).
28.1 This Deed may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Deed.
In witness whereof the parties hereto have caused this Deed to be duly executed and delivered the day and year first before written.
Executed as a deed by SMARKETS (CLIENTS) LIMITED acting by:
Executed as a deed by SMARKETS (MALTA) LIMITED acting by: