- The Service Provider will provide the Specified Services requested by the Client as set out in this Agreement on the following Terms and Conditions.
- Notwithstanding the provisions of Clause 1.1 of these Terms and Conditions, the Service Provider, in its sole discretion, reserves the right to request that the Client obtain additional confirmations in accordance with local legislation, as required, or to request that the Client sign a separate and/or additional client service agreement or fee arrangement in respect of additional services to be offered.
- It is clearly understood that, whilst the Service Provider will endeavour to provide correct information on all its services, the Service Provider does not provide legal, taxation, investment, accountancy advice or exchange control. The Service Provider strongly recommends that independent advice is sought by the Client from appropriately qualified persons.
- Where the Service Provider is undertaking to provide directorship services, the director will undertake to exercise the powers as executive director (the “Director”) of the Client company in accordance with the relevant provisions of the Articles of Incorporation of the Client company and the laws of Austria, and to inform the shareholder(s) of the Client company and the Client in writing about any actions undertaken by the Director prior to any action as managing director (Director) for and/or on behalf of the Client company and the Director undertakes;
- 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 Client company’s aims as from time to time communicated to Fidux;
- to do all other things in the ordinary course of business which the Director reasonably considers necessary or proper in the Client company’s interests;
- in a proper and efficient manner to use his reasonable endeavours to administer the Client company’s business and act loyally and faithfully to the Client company;
- that notwithstanding any other provisions of this Agreement and subject to an indemnity which is satisfactory to Fidux, the Client shall have the right to request immediate resignation of the Director with or without cause, provided the Client shall pay Fidux for all services provided by the resigned director until a replacement of the director in accordance with the laws of Austria is appointed;
- to devote sufficient time and attention as necessary to permit the proper discharge of duties unless prevented by injury or ill health. 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 Fidux on the assumption that they will be de minimis;
- to give to the Client, the Client company’s board and its auditors for the time being all such information, explanations, data and assistance as they require in connection with the Client company’s business.
- 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 the Client.
- 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, or each Client if there are two or more Clients, 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 or Clients and a Client Contact Person shall remain in full force and effect until the Service Provider receives written notice (such notice may be in hard copy or by email) to the contrary from any one of the Clients.
- 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.
- In the event that the Service Provider acts upon instructions given by any one Client or Client Contact Person and later receives conflicting instructions from another of the Clients (or the Client, or any one Client if there are two or more Clients, 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.
- 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.
- 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.
- 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, request, power of attorney 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.
- In the case of loss suffered by the Client due to the non-execution or the faulty execution of validly received notices, demands, instructions, requests, powers of attorney or other communications the Service Provider is liable only for losses resulting from its wilful neglect or default, or actual fraud.
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
- In consideration of the Service Provider agreeing to provide the Specified Services:
- The Client shall fully and absolutely hold harmless and indemnify the Service Provider, which for the avoidance of doubt, shall include any director appointed to provide the Specified Services, 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, or with his authority, 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 save for such liability which by virtue of any rule of law would otherwise attach to each Service Provider in respect of any willful negligence, default, fraud, breach of duty or breach of trust.
- 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 save for such liability which by virtue of any rule of law would otherwise attach to each Service Provider in respect of any willful negligence, default, fraud, breach of duty or breach of trust.
- The Client shall fully and absolutely hold harmless and indemnify the Service Provider, which for the avoidance of doubt, shall include any director appointed to provide the Specified Services, 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 wilful negligence, default, fraud, breach of duty or breach of trust on the part of the Service Provider.
- The indemnities shall be enforceable against the 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 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 claim, action, suit or proceeding, claims costs charges and expenses whatsoever and wheresoever made against or incurred by it arising out of or in connection with the administration of the Company, business or other entity 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.
- The termination of the Specified Services shall not relieve the Client of its obligations under the indemnities detailed herein and any other indemnities.
- 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 or representation, or for any arrangement established by or upon the instructions of the Client or an authorised person or adviser.
- The Service Provider in its absolute discretion may require evidence where it deems necessary that the Client has engaged independent competent professional advice or representation as to legal, taxation, investment, accountancy, exchange control or other matters in connection with the Client’s projected business with the Service Provider. Furthermore, it is the sole responsibility of the Client to assure itself that such advice or representation is adequate for its needs.
- 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.
- 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
The Client is deemed to be aware of money laundering and terrorist financing legislation and undertakes to provide such 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.
If the Service Provider is required, or feels obligated, to make further enquiries as to identity or 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.
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
- 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 Provider’s 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 it in the carrying out of the Specified Services, including but not limited to the engagement of third party professionals (e.g auditors, legal or tax counsel) and payment to third party for any annual government or registration fees as may be required in connection with the proper administration of the Clients affairs. Such expenses, charges and taxes incurred by the Service Provider which exceed the amount of EUR 5,000 shall be agreed with/ by the Client prior to such fees being incurred by the Service Provider. Such approval by the Client can be provided by email, letter or fax.
- The fees of the Service Provider and any and all expenses, charges and taxes incurred by 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 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.
- Where the Client instructs the Service Provider to perform the Specified Services, the Client will be responsible for the costs of such Specified Services regardless of whether the services are concluded.
CONFLICT OF INTERESTS
- 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.
- The Client will notify the Service Provider if it has reason to believe that a conflict has arisen or may arise.
- 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.
- 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.
- 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 the Service Provider and holds the Service Provider harmless for such decision.
- The Client undertakes to procure that any and/or all government duties, franchise or other taxes are paid expeditiously to the Service Provider 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 Provider of any late filing fees, penalties, costs or other liabilities that may have been incurred as a result of such late payment.
- The Client undertakes to keep the Company in a solvent position throughout the term of this Agreement.
TERMINATION BY THE CLIENT
- The Specified Services may be terminated by the Client but termination shall not be effective until the Client has discharged, or caused to be discharged all obligations to the Service Provider, 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.
- 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; if 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 if a receiver or administrative receiver is appointed of the Service Provider’s property.
TERMINATION BY THE SERVICE PROVIDER
The Service Provider may terminate this Agreement or suspend its performance of all or any of its obligations under this Agreement immediately and without liability for compensation or damages i) if the Client is in material or repeated breach of any of the terms and provisions of this Agreement; ii) has become or is declared bankrupt or insolvent or unable to pay its debts as they becomes due; or iii) 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 Company) for the purposes of and followed by amalgamation or reconstruction; iv) 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 or v) a receiver or administrative receiver is appointed of any of the Company’s property.
CORRESPONDENCE AND MAIL
All correspondence in relation to, addressed to, or received for the Client will be forwarded to such address as the Client or the Client Contact Person shall instruct in writing from time to time.
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 the Service Provider against all loss for or arising from non-delivery of any safekeeping items.
- In providing the Specified Services, the Service Provider may collect, use, consult, record, store, adapt, transfer or otherwise process the 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.
- The term “Personal Data” shall refer to the information the Client provides to the Service Provider in the form of identity documents or copies thereof, proof of address, source of wealth or income, source of funds to be used in the relationship, and/or other related documents or information relating to an identified or identifiable natural person.
- 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 Services (e.g. anti-money laundering and terrorist financing legislation) and/or when carrying out activities necessary to perform the Specified Services. For the avoidance of doubt, Personal Data may be provided to all entities of the Service Provider. In pursuing such purposes, Personal Data will be processed on the basis of the necessity to perform any contract aiming at fulfilling the Specified Services, as well as any preparatory activity. In addition, Personal Data will be processed on the basis of the necessity to comply with any legal obligation to which the controller is subject in order to perform the Specified Services.
- Any Personal Data provided by or in respect of the Client will only be transferred to a third party to the extent the transfer is necessary to perform the Specified Services or to comply with a legal obligation to which the Service Provider, as data controller, is subject.
- Only if it is necessary for the performance of the Specified Service, may the Service Provider transfer copies of the Client’s Personal Data to third countries outside the European Union, to a country that may not have an adequacy decision by the European Commission.
- In relation to the Client’s Personal Data, which is held by the Service Provider in accordance with the data protection laws in force, the Client has rights as follows: (a) to access a copy of the Personal Data; and (b) to request the rectification of the Personal Data in the event of error; (c) to have its Personal Data erased (‘right to be forgotten’) provided that the Service Provider is not under an obligation, howsoever arising, to keep Client’s data; (d) to ask for the restriction of the processing of Personal Data with the aim of limiting their processing in the future; (e) to object at any time to the processing activity; and (f) to have its Personal Data transmitted directly from the Service Provider to another controller, where technically feasible (‘right to data portability’). The above mentioned rights are enforceable by the Client to the extent they are compatible with legal and contractual obligations the Service Provider has to comply with.
- In accordance with legal and regulatory requirements, the Service Provider will retain the Client’s records for a period of five (5) 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.
- Where the Client wishes to make a complaint related to the processing activities relating to 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 located in the jurisdiction of the Client’s habitual residence, place of work, or where the alleged infringement happened.
- In the event that any provision of these Terms and Conditions 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.
- In these Terms and Conditions, 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.
- These Terms and Conditions, which shall be deemed to come into full force and effect and be applicable to all Clients from the date of issue, together with the Agreement, constitute the entire agreement between the Service Provider and the Client or Clients with respect to the terms of the provision of the client services herein referred to and hence it shall 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 or Clients with respect to the subject matter hereof.
- From time to time the Service Provider may for legal or practical reasons need to amend these Terms and Conditions. The current Terms and Conditions will be updated and can be viewed on the Service Provider’s website http://www.fidux.com/
GOVERNING LAW AND JURISDICTION
- These Terms and Conditions shall be governed by the laws of Austria and the courts thereof shall be the exclusive forum for the interpretation and adjudication of any actions or claims arising here from.
- The Client irrevocably agrees to submit to the jurisdiction of the courts of Austria. 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.