Terms and Conditions of Business
1.1 The service providers will provide the services requested by the Client (the "Specified Services") as are duly agreed and set out in this Agreement on the following Terms and Conditions.
1.2 It is clearly understood that, whilst the service providers will endeavour to provide correct information on all their services, they do not provide legal, taxation, investment or accountancy advice. The service providers strongly recommend that independent advice is sought by the Client from appropriately qualified persons.
1.3 Where the service providers are undertaking to provide directorship services to a Company (as defined above), the service providers hereby covenant to use reasonable endeavours to procure the services of a director of the Company as specified in the Fee Schedule (Section 3) and the performance and observance by the director of all his obligations under this Agreement.
1.4 Where the service providers are undertaking to provide directorship services, the director will undertake to exercise the powers as director of the Company in accordance with the relevant provisions of the articles of incorporation of the Company and the laws of Gibraltar, and the director undertakes:
1.4.1 to perform such duties and do such things as the Director considers reasonable or necessary for the attainment so far as it is practicable of the Company's aims as from time to time communicated to the service providers
1.4.2 to do all other things in the ordinary course of business which the director reasonably considers necessary or proper in the Company's interests;
1.4.3 in a proper and efficient manner to use his reasonable endeavours to administer the Company's business and act loyally and faithfully to the Company;
1.4.4 that notwithstanding any other provisions of this Agreement and subject to an indemnity which is satisfactory to the service providers, the Client shall have the right to request immediate resignation of the director with or without cause provided that the Client shall pay the service providers for all services provided by the resigned director until a replacement of the director is appointed in accordance with the laws of Gibraltar or the jurisdiction of incorporation of the relevant entity;
1.4.5 to devote sufficient time and attention as necessary to permit the proper discharge of duties and whilst the time to be devoted by the director will depend on the Company's reasonable requirements from time to time, the parties anticipate and have agreed the fees to be paid to the service providers on the assumption that they will be de minimis;
1.4.6 to give to the Client, the Company's board and its auditors for the time being all such information, explanations, data and assistance as they require in connection with the Company's business.
1.5 In the performance of its duties under this Agreement, each of the service providers may engage the services of such third party professionals (e.g. auditors, legal or tax counsel) as may be required in connection with the proper administration of the Company's affairs. All disbursements reasonably incurred by the service providers in this respect shall be reimbursed by the Company. All disbursements individually or in the aggregate exceeding the amount of GBP 5,000 shall require prior written approval of the Client or any of its authorized representatives. Such written approval can be granted by email or fax.
1.6 The parties to this Agreement agree that nothing contained in this Agreement shall be construed or have effect as constituting any relationship of employer and employee between the Company and/or the Client and the director.
2.1 The service providers will, unless agreed otherwise in writing, carry out all instructions given by or with the authority of the Client, or any one Client if there are two or more Clients, and each Client hereby appoints each of the other Clients as his attorney-in-fact for the purpose of giving such instructions. If the person authorised in writing to give instructions (the "Client Contact Person") is other than the Client, the Client hereby appoints the Client Contact Person as attorney-in-fact for the purpose of giving such instructions. The service providers will carry out all instructions given by or with the authority of the Client Contact Person. This power of attorney between Clients or between the Client and a Client Contact Person shall remain in full force and effect until the service providers receive written notice to the contrary from any one of the Clients.
2.2 The service providers will not be required to carry out instructions which they consider may be illegal or contrary to public policy or contrary to the interests of the Company or are likely to adversely affect the reputation of the service provider.
2.3 In the event that the service providers act upon instructions given by any one Client or Client Contact Person and later receive conflicting instructions from another of the Clients (or the Client if the original instructions are received from a Client Contact Person), the service providers shall not be bound to recognise or act upon any further instructions until furnished with unequivocal instructions signed by all Clients.
2.4 Each of the service providers is authorised, but not required, to take any action which it deems necessary whenever it is impractical or impossible to obtain instructions from the Client or Client Contact Person in due time or whenever action is stated to be required by law or by rulings or practice of appropriate authorities, local or foreign, in which instance, the service provider shall not be required to determine whether such actions were required or necessary according to the correct interpretation of such law, rulings, or practice or to contest or otherwise oppose such actions.
2.5 The service providers shall not be liable in any way for acting or not acting in accordance with opinions, advice, instructions, requests, certificates, powers of attorney, or other instruments believed by them to be genuine.
2.6 Unless and until the service providers receive written notice to the contrary, the service providers are authorised to rely upon and act in accordance with any notice, demand, instruction or other communication which may be, or purport to be, given by telephone, facsimile transmission, email or any other electronic means, orally or written, by the Client or Client Contact Person.
2.7 In the case of loss suffered by the Client due to the non-execution or the faulty execution of validly received instructions, each of the service providers is liable only for losses resulting from its wilful neglect or default, or actual fraud.
POWER OF ATTORNEY TO CLIENT
3.1 Should a service provider grant a Power of Attorney to the Client or appoint the Client its agent for any purpose whatsoever the Client will act strictly in accordance with the terms, conditions, powers and provisions of such Power of Attorney and will not in any circumstances exceed or attempt to exceed the scope of the power or authorisation thereby granted. In any event the service provider shall not be liable for any act or omission by the Client under any such Power of Attorney.
4.1 Where there are two or more persons or entities entering into a Client relationship with the service providers hereunder, their agreements and undertakings herein shall operate as their joint and several obligations.
EXCULPATIONS AND INDEMNITIES
5.1 In consideration of the service providers agreeing to provide the Specified Services:
- The Client shall fully and absolutely hold harmless and indemnify each of the service providers and any director of the service providers in respect of any liability in the form of loss, claims, costs, charges and expenses whatsoever and for any reason made by any company or person in respect of the Specified Services including, but not limited to, any acts or omissions in the carrying out of any instructions which it believes to have been genuinely given by the Client, however received, either by telephone, facsimile transmission, email or any other electronic means, orally or written, notwithstanding that such instructions may later prove not to have been given by the Client or with his authority safe for such liability which by virtue of any rule of law would otherwise attach to each of the service providers in respect of any negligence, default, breach of duty or breach of trust.
- The Client shall fully and absolutely hold harmless and indemnify each of the service providers and any director of the service providers in respect of any liability arising from any adverse judgements, or otherwise, in respect of any claim, action, suit or proceeding (whether civil, criminal or administrative), including any amount paid to settle a claim or action or satisfy a judgement, which liability arises directly or indirectly by reason of the service provider (a) appearing on the register as shareholders of a Company, (b) holding any office or directorship in a Company, (c) holding the office of Administrator and/or Registered Office and/or Custodian in respect of a Company or (d) taking or failing to take action in their respective official capacities with regard to the affairs of a Company, business or other entity safe for such liability which by virtue of any rule of law would otherwise attach to each of the service providers in respect of any negligence, default, breach of duty or breach of trust.
- The indemnities shall be enforceable against the trust funds in the service provider's hands or assets under its control in respect of all actions, proceedings, claims, costs, charges and expenses whatsoever and wheresoever made against or incurred by it arising out of or in connection with the administration by the service provider of any Company, business or other entity, and the service provider shall have a lien on all such funds and assets until the amount of such claims, costs, charges and expenses in any current or pending actions or claims has been determined.
- The Client shall fully and absolutely hold harmless and indemnify each of the service providers in respect of loss, claims, costs, charges and expenses whatsoever incurred by the Client in respect of Specified Services where oral instructions are given by way of telephone and are not supported by subsequent written instructions notwithstanding that such oral instructions may subsequently prove not to have been given by the Client or with his authority safe for such liability which by virtue of any rule of law would otherwise attach to each of the service providers in respect of any negligence, default, breach of duty or breach of trust.
5.2 The service providers shall be entitled to take legal advice and, when so advised, to bring or defend or authorise the bringing or defending of any action, proceeding or claim without express consent from the Client or the Client Contact Person. The cost and expense of any such advice and of any legal action shall be borne by the Client.
5.3 The termination of the Specified Services shall not relieve the Client of its obligations under the indemnities detailed herein and any other indemnities.
5.4 It shall be the sole responsibility of the Client to obtain such independent competent professional advice as to legal, taxation, investment, accountancy, exchange control or other matters as may be appropriate or desirable and under no circumstances shall the service providers be liable or responsible for the efficacy of such advice/representation, or for any arrangement established by or upon the instructions of the Client or an authorised person or adviser.
5.5 The service providers in their absolute discretion may require evidence where they deem necessary that the Client has engaged independent competent professional advice/representation as to legal, taxation, investment, accountancy, exchange control or other matters in connection the with Client's projected business with the service providers. Furthermore, it is the sole responsibility of the Client to assure itself that such legal advice/representation is adequate for its needs.
5.6 The foregoing exculpation and indemnity provisions are in addition and without prejudice to all other exculpations and indemnities expressed or implied for the benefit of the service providers or generally available to the service providers at law or otherwise.
6.1 The Client is deemed to be aware of money laundering legislation and undertakes to provide such additional information as may be required by the service providers to verify their identity, bona-fides and/or details of the nature of transactions and/or source of funds.
6.2 If the service providers are required, or feel obligated, to make further enquiries as to the precise source of funds for, or the nature of, a transaction, then the service providers shall not be liable for any losses, of whatsoever nature, arising from any delays in effecting such transaction.
6.3 The service providers have adopted policies and procedures for the prevention of bribery and the Client agrees to abide by such policies and procedures including in respect of any entity or service being the subject of this Agreement.
FEES AND EXPENSES
7.1 In consideration of the service providers performing the Specified Services the Client shall pay, and accordingly authorises the service providers to collect, all fees in accordance with the written Fee Schedule or, if no Fee Schedule or other agreement, in accordance with the service providers' standard Fee Schedule and Terms and Conditions from time to time in effect. The Client shall also reimburse the service providers for any and all expenses, charges and taxes incurred by them in the carrying out of the Specified Services.
7.2 The fees, expenses and other charges of the service providers in accordance with Clause 7.1 shall be a first charge on the assets of the Company and furthermore the service providers shall have the right of set-off against the balances or other assets of all accounts of the Client or held on behalf of the Client. Upon default by the Client each of the service providers may, at its discretion, dispose of any asset over which it has a right of lien, either by enforced sale or in the open market.
8.1 The Client undertakes to ensure that any Company, business or other entity operates correctly and legally and furthermore complies with any reporting or other requirements, including legislation of any relevant jurisdiction.
8.2 Furthermore, where required by the domestic law of the Client and/or the Company to arrange for the appointment of an agent in order to comply with a taxation authority, the Client undertakes responsibility for the decision as to the appointment or the failure to appoint such agent and indemnifies each of the service providers and holds each of the service providers harmless for such decision. The Client further undertakes to take sole responsibility for ensuring that all necessary taxation obligations have been met in respect of all funds conferred as assets under this agreement and confirms such funds are tax compliant.
8.3 The Client undertakes to procure that any and/or all government duties, franchise or other taxes are paid expeditiously to the service providers and, where appropriate, bona fide accountancy information is supplied. If late payment is made, it is agreed that the Client will pay, or procure the payment, to the service providers of any late filing fees, penalties, costs, interest or other liabilities that may have been incurred as a result of such late payment.
8.4 The Client undertakes to keep the Company in a solvent position throughout the term of this Agreement.
TERMINATION BY THE CLIENT
9.1 The Specified Services may be terminated by the Client which shall not be effective until the Client has discharged, or caused to be discharged all obligations to the service providers, including obligations for which the service providers could be made liable and all outstanding fees, expenses and charges due to the service providers. The Client may not terminate this Agreement within one (1) year of it becoming effective unless by virtue of clause 9.2.
9.2 The Client may by written notice terminate this Agreement or suspend the performance of all or any of its obligations under it immediately and without liability for compensation or damages if the service providers or the director of a Company is in material or repeated breach of any of the terms and provisions of this Agreement; the director is unable or prevented from carrying out his duties under this Agreement through incapacity or any other cause for any period or periods exceeding a total of four (4) weeks in any period of twenty-six (26) weeks; the director is convicted of any criminal offence other than an offence which in the opinion of the Client and/or Company does not affect his relation to the Company under this Agreement; the director becomes prohibited by law from holding office as a director; the director dies, becomes bankrupt, has a receiving order made against him, makes any arrangement with his creditors generally or takes or suffers any similar action as a result of debt; any of the service providers convenes a meeting of its creditors or suffers a petition to be presented or a meeting to be convened or other action to be taken with a view to its liquidation except (with the written approval of the Company) for the purpose of and followed by amalgamation or reconstruction; or a receiver or administrative receiver is appointed of any of the service providers' property.
TERMINATION BY THE SERVICE PROVIDERS
10.1 The service providers may terminate this Agreement or suspend their performance of all or any of their obligations under it immediately and without liability for compensation or damages if the Client and/or a Company is in material or repeated breach of any of the terms and provisions of this Agreement; or the Company convenes a meeting of its creditors or suffers a petition to be presented or a meeting to be convened or other action to be taken with a view to its liquidation except (with the written approval of the service providers) for the purposes of and followed by amalgamation or reconstruction; or if an event occurs that, in the reasonable opinion of the service providers, renders the continued performance of the Specified Services under this Agreement to the disadvantage of either party to this Agreement or a receiver or administrative receiver is appointed of any of the property of a Company.
CORRESPONDENCE AND MAIL
11.1 All correspondence in relation to, addressed to, or received for the Client will be forwarded to such address as the Client shall instruct in writing from time to time. If required to "Hold all Mail", each of the service providers is hereby indemnified against loss for or arising from non-delivery of such mail.
12.1 All items held in safekeeping by the service providers are at the risk of the Client although the service providers will use their best endeavours to ensure that items are held in a secure facility. The Client hereby indemnifies each of the service providers against all loss for or arising from non-delivery of any safekeeping items.
13.1 In the event that any provision of these Terms and Conditions of Business or any part thereof is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
13.2 The term the "service providers" includes Fidux Trust Company Limited, Helvetic Fund Administration Limited and, their parent, subsidiary, associated and affiliated companies and their directors, shareholders, officers, employees, consultants and agents, their successors and assigns.
13.3 In these Terms and Conditions of Business, where the context so permits, the masculine shall include the feminine and vice-versa, the neuter shall include the masculine and vice-versa, and the singular shall include the plural and vice-versa.
13.4 These Terms and Conditions of Business, which shall be deemed to come into full force and effect and be applicable to all Clients from the date of issue, constitute the entire agreement between the service providers and the Client with respect to the subject matter hereof and supersede all previous expectations, understandings, communications, representations, agreements and Terms and Conditions of Business, whether oral or written between the service providers and the Client with respect to the subject matter hereof.
13.5 From time to time the service providers may for legal or practical reasons need to amend these Terms and Conditions of Business. The current Terms and Conditions of Business can be viewed on the following websites http://www.fidux.com/terms_business.html and http://www.helveticfund.com/terms.html.
GOVERNING LAW AND JURISDICTION
14.1 These Terms and Conditions of Business shall be governed by the laws of Gibraltar and the courts thereof shall be the exclusive forum for the interpretation and adjudication of any actions or claims arising here from.
14.2 The Client irrevocably agrees to submit to the jurisdiction of the courts of Gibraltar. The service providers still retain the right, however, to bring legal proceedings at the address of the Client or before any other competent court of law.