Terms and Conditions of Business

March 2018

SERVICES

1.1 The Service Provider will provide the Specified Services requested by the Client as set out in this Agreement and any additional services as are duly agreed by the parties subsequent to the date of this Agreement on the following Terms and Conditions.

1.2 It is clearly understood that, whilst the Service Provider will endeavour to provide correct information on all their services, they do not provide legal, taxation, investment or accountancy advice. The Service Provider strongly recommends that independent advice is sought by the Client from appropriately qualified persons.

1.3 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.

INSTRUCTIONS

2.1 The Service Provider 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. Subject to the provisions of this Clause 2, the Service Provider 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 Provider receive written notice to the contrary from any one of the Clients.

2.2 The Service Provider will not be required to carry out instructions which they consider may be illegal or contrary to public policy or are likely to adversely affect the reputation of the Service Provider.

2.3 In the event that the Service Provider 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 Provider shall not be bound to recognise or act upon any further instructions until furnished with unequivocal instructions signed by all Clients.

2.4 The Service Provider 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 Provider 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 the Service Provider to be genuine.

2.6 Unless and until the Service Provider receives written notice to the contrary, the Service Provider is 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, the Service Provider is liable only for losses resulting from its wilful neglect or default, or actual fraud.

JOINT OWNERSHIP

3.1 Where there are two or more persons or entities entering into a Client relationship with the Service Provider hereunder, their agreements and undertakings herein shall operate as their joint and several obligations.

EXCULPATIONS AND INDEMNITIES

4.1 In consideration of the Service Provider agreeing to provide the Specified Services:

  1. (a) The Client shall fully and absolutely hold harmless and indemnify the Service Provider and any director of the Service Provider 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 Provider in respect of any negligence, default, breach of duty or breach of trust.
  2. (b) The Client shall fully and absolutely hold harmless and indemnify the Service Provider 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 Provider in respect of any negligence, default, breach of duty or breach of trust.
  3. (c) The Client shall fully and absolutely hold harmless and indemnify the Service Provider and any director of the Service Provider 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 to satisfy a judgement, which liability arises directly or indirectly by reason of the Service Provider (i) holding any office with respect to a legal entity, (ii) holding the office of administrator and/or custodian taking or failing to take action in their respective official capacities with regard to the affairs of the legal entity or (iii) granting a power of attorney to a third party for any purpose whatsoever; provided that such liability shall not be due to the negligence, default, breach of duty or breach of trust on the part of the Service Provider.

4.2 The Service Provider 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.

4.3 The termination of the Specified Services shall not relieve the Client of its obligations under the indemnities detailed herein and any other indemnities.

4.4 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 Provider 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.

4.5 The Service Provider 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 Provider. Furthermore, it is the sole responsibility of the Client to assure itself that such legal advice/representation is adequate for its needs.

4.6 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 Provider or generally available to the Service Provider at law or otherwise.

4.7 The Client agrees that the indemnities provided in this Clause 4 shall apply to any services agreed to be provided by the Service Provider on behalf of the Client subsequent to the date of this Agreement.

MONEY LAUNDERING AND BRIBERY

5.1 The Client is deemed to be aware of money laundering and terrorist financing legislation and undertakes to provide such additional information as may be required by the Service Provider to verify its identity, bona-fides and/or details of the nature of transactions and/or source of funds.

5.2 If the Service Provider is required, or feels obligated, to make further enquiries as to the precise source of funds, or the nature of, a transaction, then the Service Provider shall not be liable for any losses, of whatsoever nature, arising from any delays in effecting such transaction.

5.3 The Service Provider has 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

6.1 In consideration of the Service Provider performing the Specified Services the Client shall pay, and accordingly authorises the Service Provider 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 Provider for any and all expenses, charges and taxes incurred by them in the carrying out of the Specified Services.

6.2 The fees, expenses and other charges of the Service Provider in accordance with Clause 6.1 shall be a first charge on the assets of the Company and furthermore the Service Provider 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 Provider 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.

FEES AND EXPENSES

7.1 Where an actual or potential conflict between the Client’s interests and the interest of another client of the Company arises during the Service Provider’s appointment, the Company will discuss the position with the Client and determine the appropriate course of action. In order to protect the Client’s interests, the Service Provider may in certain circumstances have to cease supplying the Specified Services.

7.2 The Client will notify the Service Provider if it has reason to believe that a conflict has arisen or may arise.

CLIENT UNDERTAKINGS

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 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.

TERMINATION BY THE CLIENT

9.1 The Specified Services may be terminated by the Client but 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 Provider could be made liable and all outstanding fees, expenses and charges due to the Service Provider are paid in full. 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 Provider is in material or repeated breach of any of the terms and provisions of this Agreement; the Service Provider 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 the Service Provider’s property.

TERMINATION BY THE SERVICE PROVIDER

10.1 The Service Provider 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 is in material or repeated breach of any of the terms and provisions of this Agreement; or if an event occurs that, in the reasonable opinion of the Service Provider, renders the continued performance of the Specified Services under this Agreement to the disadvantage of either party to this Agreement.

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.

SAFEKEEPING

12.1 All items held in safekeeping by the Service Provider are at the risk of the Client although the Service Provider will use its best endeavours to ensure that items are held in a secure facility. The Client hereby indemnifies each of the Service Provider against all loss for or arising from non-delivery of any safekeeping items.

DATA PROCESSING

13.1 In providing the Specified Service, the Service Provider may collect, use, consult, record, store, adapt, transfer or otherwise process Client’s Personal Data (defined below). In such case, the Company will be considered as a ‘data controller and will be deemed to act accordingly under the provision of the data Protection Laws in force.

13.2 The term “Personal Data” shall refer to the information the Client provides to the Service Provider in the form identity documents or copies thereof, proof of address, source of wealth or income and source of funds to be used in the relationship, or other related documents or information relating to an identified or identifiable natural person.

13.3 Personal Data will only be used by the Service Provider to discharge its legal obligations under any applicable law related to the performance of the Specified Service (e.g. anti-money laundering and terrorist financing legislation), and/or when carrying out activities necessary to perform the Specified Services.

13.4 Any Personal Data provided by the Client will only be transferred to a third party to the extent the transfer is necessary to perform the Specified Service or to comply with a legal obligation to which the Service Provider, as data controller, is subject.

13.5 In case it is necessary for the performance of the Specified Service, the Service Provider may transfer copies of Client’s Personal Data to third countries outside the EU, to a country that may not have an adequacy decision by the European Commission.

13.6 The Client has the right to the access and request for rectification of any data held by the Service Provider in accordance with the Data Protection Laws. In particular, the Client has rights in relation to its own personal data as follows: (a) to access a copy of the personal data; and (b) to request rectification of the personal data in the event of error.

13.7 In accordance with legal and regulatory requirements, the Service Provider will retain Client’s records for a period of five years following the termination of any relationship between the parties. This period may be extended by force of law, regulatory requirement or agreement between the parties.

13.8 Where the Client wishes to make a complaint related to the processing activities of its Personal Data, it shall first address the complaint to the Service Provider. If the complaint still remains unresolved, the Client may lodge a complaint with the relevant data protection authority or supervisory authority concerned.

GENERAL

14.1 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.

14.2 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.

14.3 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 Provider 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 Provider and the Client with respect to the subject matter hereof.

14.4 From time to time the Service Provider 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 FIDUX’s website www.fidux.com

GOVERNING LAW AND JURISDICTION

15.1 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.

15.2 The Client irrevocably agrees to submit to the jurisdiction of the courts of Gibraltar. The Service Provider retains the right, however, to bring legal proceedings at the address of the Client or before any other competent court of law.