1 SERVICES
1.1 In these terms and conditions of business (“Terms and Conditions”) the “Service Provider” shall mean Fidux Trust Company Limited, Gibraltar; Fidux Trust Company Limited, United Kingdom or Fidux Management Services GmbH and, in any case, where the context permits, shall include each of their respective parent companies, subsidiary companies, consultants, agents, associated and affiliated companies and its and their directors, shareholders, officers and employees, and their successors and assigns (the “Affiliates”) as detailed under the terms of the Agreement, or, if no Agreement is in place, the Service Provider shall be whichever Service Provider(s) is/are providing or has agreed to provide the Specified Services and shall include its/their Affiliates.
1.2 The Service Provider will provide the Specified Services as set out in the Agreement and/or the agreed Fee Schedule or where there is no Agreement/agreed Fee Schedule in place, as requested by the Client based on the Service Provider’s standard fee schedule (in each case hereinafter to be referred to as the “Agreement”), on the following Terms and Conditions and subject to the laws of the jurisdiction in which the Service Provider is situate (the “Applicable Law”) and the Service Provider’s internal policies.
1.3 Notwithstanding the provisions of clause 1.2 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.
1.4 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 or exchange control advice. The Service Provider strongly recommends that independent advice is sought by the Client from appropriately qualified persons.
[The following clause 1.5 shall only apply to Specified Services provided or to be provided by Fidux Management Services GmbH]
1.5 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 the Director undertakes:
1.6 The parties to the Agreement and/or these Terms and Conditions agree that nothing contained in the Agreement and/or these Terms and Conditions shall be construed or have effect as constituting any relationship of employer and employee between the Service Provider and the Client.
2 INSTRUCTIONS
2.1 The Service Provider will, unless agreed otherwise in writing and subject to these Terms and Conditions and the Agreement, 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/her 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.
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 The Service Provider may rely upon instructions and/or advice provided by the Client and/or a Client Contact Person in providing the Specified Services, however, the Service Provider is not obligated to follow such instructions in circumstances where the Service Provider has legal authority to act.
2.4 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 any other 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.
2.5 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.
2.6 The Service Provider shall not be liable in any way for acting or not acting in accordance with opinions, advice, notice, demand, instructions, requests, certificates, powers of attorney, or other instruments or communication believed by the Service Provider to be genuine.
2.7 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.
2.8 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 gross negligence or wilful default, or actual fraud.
3 JOINT OWNERSHIP
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.
4 EXCULPATIONS AND INDEMNITIES
4.1 In consideration of the Service Provider agreeing to provide the Specified Services, the Client shall hold harmless and indemnify the Service Provider against all reasonable and proper liabilities, enquiries, complaints, claims, actions, proceedings, suit, investigation, mediation or other form of dispute resolution (whether civil, criminal or administrative and whether potential, threatened or brought), remuneration, costs, charges, damages, time spent, expenses (including fees for legal and other advice or assistance), wasted expenditure and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss in respect of diverted time, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable and proper professional costs and expenses, including for the avoidance of doubt any professional costs of in-house counsel or other employees of the Service Provider) even if not recoverable by law (and including, without limitation, all reasonable and proper fees, taxes, costs, and expenses incidental to appellate, bankruptcy, and post-judgment proceedings) (each a “Liability” and together the “Liabilities”) suffered or incurred by the Service Provider arising out of or in connection with:
4.1.1 any breach of any warranty contained in these Terms and Conditions and/or the Agreement;
4.1.2 the Client's material breach of these Terms and Conditions and/or the Agreement;
4.1.3 any delay or obstruction to the provision of the Specified Services arising out of or in connection with any action or inaction of the Client;
4.1.4 the enforcement of these Terms and Conditions and/or the Agreement;
4.1.5 the Specified Services including, but not limited to, any acts or omissions in the carrying out of any instructions which the Service Provider believes to have been genuinely given by the Client or with his/her 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/her authority; and,
4.1.6 any claim, action, suit, investigation, mediation, proceeding or other form of dispute resolution (whether civil, criminal or administrative and whether potential, threatened or brought), including any amount paid to settle a claim or action or to satisfy a judgement (each a “Claim” and together the “Claims”), which liability arises out of or in connection with 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, (iii) granting a power of attorney to a third party in connection with the services provided under the Agreement and/or these Terms and Conditions.
4.2 Notwithstanding clause 4.1 above, the Client shall in no case be required to indemnify the Service Provider in respect of any Liability which is directly due to gross negligence, wilful default, or actual fraud on the part of the Service Provider.
4.3 The indemnities and/or obligations under this clause 4 shall be enforceable against the funds in the Service Provider’s hands or assets under its control for and on behalf of the Client, company, business or other entity to which Specified Services are provided pursuant to the terms of the Agreement and/or these Terms and Conditions (each a “Client Entity” and together the “Client Entities”) 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 Claim has been determined.
4.4 The Service Provider shall be entitled to take legal or other expert advice or assistance and, when so advised, to bring or defend or authorise the bringing or defending of any Claim or any Liability, costs charges and expenses whatsoever and wheresoever made against or incurred by it arising out of or in connection with the administration of the Client’s affairs and/or the Client Entities without express consent from the Client or the Client Contact Person. The cost and expense of any such advice or assistance, including for the avoidance of doubt, any advice or assistance provided by in-house counsel or employee/s of the Service Provider and of any legal action shall be borne by the Client or the relevant Client Entity.
4.5 If a Claim and/or Claims arising out of or in relation to the Agreement and/or these Terms and Conditions is or are brought, and the Service Provider is deemed to be the prevailing party in a final, non-appealable judgment regarding the Claim or if no final judgment is made and/or such Claim is settled, withdrawn or abandoned by the Client or following judgment in favour of the Service Provider, no further appeal is made within sixty (60) days of the date of the judgment, the Service Provider is entitled to receive, and the Client shall pay and indemnify the Service Provider against, in addition to all other remedies to which the Service Provider may be entitled, all reasonable and proper costs and expenses incurred by the Service Provider in conducting, defending, mediating, settling or initiating the Claim, including legal fees and expenses and court costs as well as all other reasonable and proper fees and expenses of the Service Provider in conducting, defending, mediating, settling or initiating the Claim, including the Service Provider’s fees calculated at the relevant hourly rate/s in respect of time incurred by the Service Provider in conducting, defending, mediating, settling or initiating such Claim, even if not recoverable by law (and including, without limitation, all reasonable and proper fees, taxes, costs, and expenses incidental to appellate, bankruptcy, and post-judgment proceedings).
4.6 The termination of the Specified Services shall not relieve the Client of its obligations under the indemnities and obligations detailed in this clause 4 and any other indemnities.
4.7 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.
4.8 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.
4.9 The Client agrees that the indemnities and obligations 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 the Agreement.
5 MONEY LAUNDERING AND BRIBERY
5.1 The Client is deemed to be aware of money laundering, terrorist financing and proliferation 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.
5.2 If the Service Provider is required, or feels obligated, to make further enquiries as to the identity or 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 the Agreement and/or these Terms and Conditions.
5.4 Each party hereby represents, warrants and covenants to the other party that:
5.4.1 In the performance of the Agreement and/or these Terms and Conditions, he/she/it and their shareholders, affiliates, officers, directors and employees, agents and representatives, if any, will comply strictly with all applicable anti-corruption laws;
5.4.2 Neither he/she/it nor their shareholders, affiliates, officers, directors and employees, agents or representatives, if any, has taken nor will take any action in furtherance of an offer, payment, promise to pay, receipt, acceptance or authorisation of payment or giving or receiving of anything of value, either directly or indirectly, to or from any person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage;
5.4.3 Neither party shall be obligated under the Agreement and/or these Terms and Conditions to take any action or omit to take any action that it believes, in good faith, would cause him/her/it to be in violation of any applicable anti-corruption laws.
6 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 is in place, in accordance with the Service Provider’s standard fee schedule and these Terms and Conditions from time to time in effect. The Client shall also reimburse the Service Provider for any and all expenses, charges, taxes and costs 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 any payment to a third party for any annual government or registration fees as may be required in connection with the proper administration of the Client’s affairs and Client Entities. Such expenses, charges and taxes may be subject to prior agreement with the Client, at an agreed limit, depending upon the jurisdiction of the Client or the jurisdiction of the Client entity. Please refer to the Agreement for more specific details.
6.2 The fees of the Service Provider and any and all amounts, expenses, charges, taxes, costs incurred by or payable to the Service Provider in accordance with the terms of the Agreement and/or these Terms and Conditions shall be a first charge on the assets of the Client and/or Client Entities 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 and/or any Client Entity. 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.
6.3 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.
6.4 In the event of termination of the Agreement in accordance with clause 9.1 or 10 of these Terms and Conditions, no credit or pro-rated refund will be given for any portions of prepaid annual fees paid by the Client and/or Client Entities and all outstanding fees and expenses incurred to the point of termination shall be paid by the Client and/or Client Entities in accordance with the terms of each invoice issued by the Service Provider.
6.5 Notwithstanding clause 4.5 of these Terms and Conditions, in the event that the Service Provider is required to bring a Claim to collect any unpaid fees, expenses, charges, taxes and/or costs or in respect of any other breach of the terms of the Agreement and/or these Terms and Conditions by the Client, the Client understands, agrees and warrants that it will pay properly incurred lawyers/ attorneys fees, as well as interest at the highest rate permitted by the law on the amount of any fees, expenses, charges, taxes or costs due to the Service Provider and the Service Provider’s fees calculated at the relevant hourly rate/s in respect of time incurred by the Service Provider in initiating such Claim, even if not recoverable by law, all such fees, expenses, charges, taxes, interest and/or costs to become payable immediately upon demand. The Client further understands that the Service Provider has the right to retain all files, papers and other property coming into its possession in connection with its engagement without liability to the Client or any Client Entity until the Service Provider has been paid all fees, expenses, charges, taxes, costs and interest due to it under the Agreement and/or these Terms and Conditions, without deduction, counterclaim or set-off.
6.6 The Service Provider reserves the right to charge for its administrative costs in relation to explaining, justifying or providing details, or pursuing or arranging payment, of any outstanding invoice, on a time-spent basis.
7 CONFLICT OF INTERESTS
7.1 Where an actual or potential conflict between the Client’s interests and the interest of another client of the Service Provider arises during the Service Provider’s appointment, the Service Provider 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.
8 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 the Agreement and/or these Terms and Conditions and confirms such funds are tax compliant.
8.3 The Client acknowledges and agrees that following the implementation into Applicable Law of automatic tax or other information exchange agreements between the country of incorporation of the Service Provider and other countries from time to time (whether based on bilateral agreements or multilateral global initiatives such as, without limitation, the Organisation for Economic Co-operation and Development’s Common Reporting Standard), the Service Provider may be required to collect reportable information and to disclose reportable information to foreign tax or governmental authorities either directly or via the relevant government. The Service Provider’s obligation to obtain, disclose and exchange reportable information could extend beyond the ultimate beneficial owner of the Client Entity to other relevant parties such as the directors, minority shareholders and persons who receive payments from the Client Entity. The Client therefore hereby agrees to hold the Service Provider harmless in respect of any collection or disclosure of reportable information, including fully indemnifying the Service Provider for any costs and expenses (including legal or other professional fees or expenses) incurred or sustained by the Service Provider, howsoever arising, in connection with, or in relation to, any collection or disclosure of such reportable information.
[The following clauses 8.4 and 8.5 only applies to Specified Services provided or to be provided by Fidux Management Services GmbH ]
8.4 Furthermore, where required by the domestic law of the Client and/or the Client Entity 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.
8.5 The Client undertakes to procure that any and/or all relevant government duties, franchise or other taxes are paid to the Service Provider as soon as reasonably practicable 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.
9 TERMINATION BY THE CLIENT
9.1 Subject to clause 9.2, the Specified Services may be terminated by the Client serving not less than three (3) months’ written notice to the Service Provider. 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, taxes, charges and costs, and any interest thereon, due to the Service Provider are paid in full. Notwithstanding the aforementioned, the Client may not terminate the Agreement within one (1) year of it becoming effective unless by virtue of clause 9.2 hereof.
9.2 The Client may by written notice immediately terminate the Agreement or suspend the performance of all or any of its obligations under the Agreement without liability for compensation or damages i) if the Service Provider is in material or repeated breach of any of the terms and provisions of the Agreement; ii) 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 for the purpose of and followed by amalgamation or reconstruction; or iii) if a receiver or administrative receiver of the Service Provider’s property is appointed.
10 TERMINATION BY THE SERVICE PROVIDER
The Service Provider may by written notice immediately terminate the Agreement or suspend its performance of all or any of its obligations under the Agreement and/or these Terms and Conditions without liability for compensation or damages i) if the Client is in material or repeated breach of any of the terms and provisions of the Agreement and/or these Terms and Conditions; ii) if the Client has become or is declared bankrupt or insolvent or unable to pay its debts as they become due; iii) if the Client or a Client Entity 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) if an event occurs that, in the reasonable opinion of the Service Provider, renders the continued performance of the Specified Services under the Agreement and/or these Terms and Conditions to the disadvantage of either party to the Agreement and/or these Terms and Conditions; v) a receiver or administrative receiver of any of the property of the Client or a Client Entity is appointed; or vi) in any other case subject to three (3) months’ written notice.
11 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.
12 SAFEKEEPING
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 items held in safekeeping.
13 DATA PROCESSING
13.1 In providing the Specified Services and in order to meet legal requirements regarding anti-money laundering and terrorist financing, the Client’s Personal Data (as defined below) may be collected, used, consulted, recorded, stored, adapted, transferred or otherwise processed by the Service Provider in accordance with the governing law of the Agreement or if none, the country of incorporation of the Service Provider, and as far as applicable, Regulation (EU) 2016/679 (General Data Protection Regulation) (the “GDPR”) and any other relevant legislation. In such case, the Service Provider 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 provided to the Service Provider by or in respect of the Client 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.
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 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, the Client hereby acknowledges and expressly agrees that Personal Data may be provided to all entities of the Service Provider, whether inside or outside of the European Union, Gibraltar or the United Kingdom. In pursuing such purposes, Personal Data will be processed on the basis of the necessity to perform any contract aiming at providing 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 data controller is subject in order to perform the Specified Services.
13.4 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.
13.5 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 jurisdiction of the Service Provider, European Union or to a country that may not have an adequacy decision by the European Commission, provided always that such transfer is in accordance with the GDPR.
13.6 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; (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 the Client’s Personal 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 in respect to the Personal Data; and (f) to have its Personal Data transmitted directly from the Service Provider to another data 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. The above rights are also more fully set out in the data protection notice of the Service Provider which can be found on its website www.fidux.com.
13.7 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.
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 located in the jurisdiction of the Client’s habitual residence, place of work, or where the alleged infringement happened.
14 GENERAL
14.1 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.
14.2 Notwithstanding any other term of the Agreement and/or these Terms and Conditions, if the Service Provider is prevented, hindered, delayed from performing, and/or incapable or unable to perform its obligations under the Agreement and/or these Terms and Conditions, due to or in connection with an event, circumstance, change in law or regulation, or cause beyond its control (each an “Event”), the Service Provider shall not be in breach of the Agreement and/or these Terms and Conditions or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
14.3 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.
14.4 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 services herein referred to and 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.
14.5 The Service Provider may from time to time amend these Terms and Conditions:
14.5.1 to reflect changes in relevant laws and regulatory requirements; and/or,
14.5.2 to implement minor technical adjustments and improvements.
These changes will not materially affect the Specified Services provided under the Agreement or any agreed fees.
14.6 In addition, the Client understands and agrees that the Service Provider may make more significant changes to these Terms and Conditions from time to time. The current Terms and Conditions will be updated and can be viewed on the Service Provider’s website https://www.fidux.com/ (the “Site”). Such Terms and Conditions shall be effective as of the date that is three months from the date of publishing on the Site (the “Effective Date”) and this shall constitute adequate and constructive notice to the Client of any changes. The Client therefore acknowledges that it is responsible for regularly reviewing the Site and that it has sole responsibility to review the Terms and Conditions from time to time. The Client’s continued use of the Services
following the Effective Date will constitute binding acceptance of such modifications under the Agreement and/or the Terms and Conditions.
14.7 Businesses and people are often victimised by the creation and dissemination of computer viruses, hackers, malware, ransomware, or similar destructive electronic programs. The Service Provider takes these issues seriously and has invested in software and systems that identify and offer protection against these issues as are necessary and/ or required by law, however, the Service Provider is not able to guarantee absolute security. The Service Provider updates its system on a regular basis using the latest version of the software provided by our various vendors. The Client acknowledges that the Service Provider cannot guarantee that the Service Provider will not be successfully attacked or that the Client’s documents, emails and confidential information, or those of a Client Entity, will not be compromised and accordingly, the Service Provider shall not be held responsible for any such issues and, for the avoidance of doubt, the Service Provider makes no warranties regarding the same.
[The following clause 14.8 of these Terms and Conditions shall only apply to Specified Services provided or to be provided by Fidux Trust Company Limited, England and Wales]
14.8 Except for where expressly provided and/or where the context allows, in both cases for the benefit of the Service Provider (which for the avoidance of doubt includes each of its parent companies, subsidiary companies, consultants, agents, associated and affiliated companies and its and their directors, shareholders, officers and employees, and their successors and assigns, providing services pursuant to the Agreement and/or these Terms and Conditions), no person who is not a party to the Agreement and/or these Terms and Conditions shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement and/or these Terms and Conditions.
14.9 Should the Client have a complaint regarding the service received from the Service Provider, it should be sent in writing and addressed to the Chief Executive Officer of the Service Provider, where it will receive immediate attention.
15 GOVERNING LAW AND JURISDICTION
15.1 These Terms and Conditions shall be governed by the laws of the relevant country as specified in the Agreement or if none, the country of incorporation of the Service Provider (the “Relevant Country”), which shall be the exclusive forum for the interpretation and adjudication of any actions or claims arising herefrom.
15.2 The Client irrevocably agrees to submit to the exclusive jurisdiction of the courts of the Relevant Country. The Client waives any objection to such proceedings in the courts of Relevant Country on the grounds of venue or on the basis that such proceedings have been brought in an inconvenient forum. 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.
16 MISCELLANEOUS
If any term of these Terms and Conditions conflict with the terms agreed under the Agreement, the relevant term of the Agreement will govern for that service.
17 IMPORTANT NOTICE
The Service Provider provides fiduciary services pursuant to the Agreement and/or these Terms and Conditions only and no representation made by any director, officer, employee, consultant or agent of the Service Provider, whether ancillary and incidental to the services provided by it or otherwise, shall constitute tax advice. Clients and potential clients are therefore advised to consult their professional advisors concerning possible taxation or other consequences of purchasing, holding, selling or otherwise disposing of assets under the laws of their country of incorporation, establishment, citizenship, residence or domicile, or elsewhere.
1 SERVICES
1.1 In these terms and conditions of business (the “Terms and Conditions”):
1.1.1 The “Service Provider” shall mean Finom Limited (which definition, where the context permits, shall include each of the Service Provider’s parent companies, subsidiary companies, consultants, agents, associated and affiliated companies and its and their directors, shareholders, officers and employees, and their successors and assigns).
1.1.2 “Trustee” shall mean Fidux Trust Company Limited, Gibraltar and/or Fidux Trust Company Limited, United Kingdom as appointed by the Service Provider, in its capacity as the settlor of the settlement established pursuant to the terms of the Agreement and/or these Terms and Conditions (the “Settlement”), to act as trustee of the Settlement.
1.2 The Service Provider will provide the Specified Services requested by the Client as set out in the Agreement and/or the agreed Fee Schedule or where there is no Agreement/agreed Fee Schedule, as requested by the Client based on the Service Provider’s standard fee schedule (in each case hereinafter to be referred to as the “Agreement”), on the following Terms and Conditions and subject to the laws of the jurisdiction in which the Service Provider is situate (the “Applicable Law”) and the Service Provider’s internal policies.
1.3 Notwithstanding the provisions of clause 1.2 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.
1.4 It is clearly understood that, whilst the Service Provider will endeavour to provide correct information on all of its services, the Service Provider does not provide legal, taxation, investment, accountancy or exchange control advice. The Service Provider strongly recommends that independent advice is sought by the Client from appropriately qualified persons.
1.5 The parties to the Agreement and/or these Terms and Conditions agree that nothing contained in the Agreement and/or these Terms and Conditions shall be construed or have effect as constituting any relationship of employer and employee between the Service Provider and the Client.
2 RECOMMENDATIONS
2.1 Without prejudice to its position as settlor or the duties of its directors, officers, employees and agents and subject to the terms of these Terms and Conditions and the Agreement, the Service Provider will, unless agreed otherwise in writing, follow recommendations received by it from 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/her attorney-in-fact for the purpose of giving such instructions. If the person authorised in writing to give recommendations (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 recommendations. 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.
2.2 The Service Provider will not be required to carry out or consider any recommendations which it considers may be illegal or contrary to public policy or are likely to adversely affect its reputation.
2.3 The Service Provider may also rely upon recommendations and/or advice provided by the Client and/or a Client Contact Person in providing the Specified Services, however, the Service Provider is not obligated to follow such recommendations in circumstances where it has legal authority to act.
2.4 In the event that the Service Provider acts upon recommendations given by any one Client or Client Contact Person and later receives conflicting recommendations from any other of the Clients (or the Client, or any one Client if there are two or more Clients, if the original recommendations are received from a Client Contact Person), the Service Provider shall not be bound to consider, recognise or act upon any further recommendations until furnished with unequivocal recommendations signed by all Clients.
2.5 The Service Provider is authorised, but not required, to take any action which it deems necessary whenever it is impractical or impossible to obtain recommendations from the Client or the 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.
2.6 The Service Provider shall not be liable in any way for acting or not acting in accordance with opinions, advice, notice, demand, recommendations, requests, certificates, powers of attorney or other instruments or communication believed by it to be genuine.
2.7 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 opinions, advice, 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 the Client Contact Person.
2.8 In the case of loss suffered by the Client due to the non-execution or to the faulty execution of validly received recommendations, notices, demands, instructions, requests, powers of attorney or other communications, the Service Provider is liable only for losses resulting from its gross negligence or wilful default, or actual fraud.
3 JOINT OWNERSHIP
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.
4 EXCULPATIONS AND INDEMNITIES
4.1 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 against all reasonable and proper liabilities, enquiries, complaints, claims, actions, proceedings, suit, investigation, mediation or other form of dispute resolution (whether civil, criminal or administrative and whether potential, threatened or brought), remuneration, costs, charges, damages, time spent, expenses (including fees for legal and other advice or assistance), wasted expenditure and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss in respect of diverted time, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable and proper professional costs and expenses, including for the avoidance of doubt any professional costs of in-house counsel or other employees of the Service Provider) even if not recoverable by law (and including, without limitation, all reasonable and proper fees, taxes, costs, and expenses incidental to appellate, bankruptcy, and post-judgment proceedings) (each a “Liability” and together the “Liabilities”) suffered or incurred by the Service Provider arising out of or in connection with:
4.1.1 any breach of any warranty contained in these Terms and Conditions and/or the Agreement;
4.1.2 the Client's material breach of these Terms and Conditions and/or the Agreement;
4.1.3 any delay or obstruction to the provision of the Specified Services arising out of or in connection with any action or inaction of the Client;
4.1.4 the enforcement of these Terms and Conditions and/or the Agreement;
4.1.5 the Specified Services including, but not limited to, any acts or omissions in the carrying out of any recommendations which the Service Provider believes to have been genuinely given by the Client or with his/her authority, however received, either by telephone, facsimile transmission, email or any other electronic means, orally or written, notwithstanding that such recommendations may later prove not to have been given by the Client or with his/her authority; and,
4.1.6 any claim, action, suit, investigation, mediation, proceeding or other form of dispute resolution (whether civil, criminal or administrative and whether potential, threatened or brought), including any amount paid to settle a claim or action or to satisfy a judgment (each a “Claim” and together the “Claims”), which liability arises out of or in connection with the Service Provider (i) holding any office or trusteeship in the Settlement, 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 Settlement or legal entity, (iii) granting a power of attorney to a third party in connection with the services provided under the Agreement and/or these Terms and Conditions.
4.2 Notwithstanding clause 4.1 above, the Client shall in no case be required to indemnify the Service Provider in respect of any Liability which is directly due to the gross negligence, wilful default or actual fraud on the part of the Service Provider.
4.3 The indemnities and/or obligations under this clause 4 shall be enforceable against the funds in the Service Provider’s hands or assets under its control for and on behalf of the Client, company, business or other entity to which Specified Services are provided (each a “Client Entity” and together the “Client Entities”) and/or against the funds in the Trustee’s hands as Trustee of the Settlement pursuant to the terms of the Agreement and/or these Terms and Conditions, and the Service Provider or the Trustee, as appropriate, 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.
4.4 The Service Provider shall be entitled to take legal or other expert advice or assistance and, when so advised, to bring or defend or authorise the bringing or defending of any Claim or any Liability whatsoever and wheresoever made against or incurred by it arising out of or in connection with the Specified Services without express consent from the Client or the Client Contact Person. The cost and expense of any such advice or assistance, including, for the avoidance of doubt, any advice or assistance provided by in-house counsel or employee/s of the Service Provider and of any legal action shall be borne by the Client and/or the relevant Client Entity and/or the funds in the Trustee’s hands as Trustee of the Settlement.
4.5 If a Claim and/or Claims arising out of or in relation to the Agreement and/or these Terms and Conditions is brought, and the Service Provider is deemed to be the prevailing party in a final, non-appealable judgment regarding the Claim or if no final judgment is made and/or Claim is settled, withdrawn or abandoned by the Client or following judgment in favour of the Service Provider, no further appeal is made within sixty (60) days of the date of the judgment, the Service Provider is entitled to receive, and the Client shall pay and indemnify the Service Provider against, in addition to all other remedies to which the Service Provider may be entitled, all reasonable and proper costs and expenses incurred by the Service Provider in conducting, defending, mediating, settling or initiating the Claim, including legal fees and expenses and court costs as well as all other reasonable and proper fees and expenses of the Service Provider in defending, mediating, settling or initiating the Claim, including their fees calculated at the relevant hourly rate/s in respect of time incurred by them in conducting, defending, mediating, settling or initiating such Claim, even if not recoverable by law (and including, without limitation, all reasonable and proper fees, taxes, costs, and expenses incidental to appellate, bankruptcy, and post-judgment proceedings).
4.6 The termination of the Specified Services shall not relieve the Client of his/her/its obligations under the indemnities and obligations detailed in this clause 4 and any other indemnities.
4.7 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 recommendations of the Client or an authorised person or advisor.
4.8 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.
4.9 The Client agrees that the indemnities and obligations provided in this clause 4 shall apply to any services agreed to be provided by the Service Provider on behalf of the Client or the Settlement subsequent to the date of the Agreement.
5 MONEY LAUNDERING AND BRIBERY
5.1 The Client is deemed to be aware of money laundering, terrorist financing and proliferation 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 any individual able to instruct the operation of the activities of the Settlement and 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 identity or precise source of funds, or the nature of funds, or 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 the Agreement and/or these Terms and Conditions.
5.4 Each party hereby represents, warrants and covenants to the other party that:
5.4.1 In the performance of the Agreement and/or these Terms and Conditions, he/she/it and their shareholders, affiliates, officers, directors and employees, agents and representatives, if any, will comply strictly with all applicable anti-corruption laws;
5.4.2 Neither he/she/it nor their shareholders, affiliates, officers, directors and employees, agents or representatives, if any, has taken nor will take any action in furtherance of an offer, payment, promise to pay, receipt, acceptance or authorisation of payment or giving or receiving of anything of value, either directly or indirectly, to or from any person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage;
5.4.3 Neither party shall be obligated under the Agreement and/or these Terms and Conditions to take any action or omit to take any action that it believes, in good faith, would cause him/her/it to be in violation of any applicable anti-corruption laws.
6 FEES AND EXPENSES
6.1 In consideration of the Service Provider performing the Specified Services and the Trustee acting as trustee of the Settlement 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 is in place, in accordance with the Service Provider’s standard Fee Schedule and these Terms and Conditions from time to time in effect. The Client shall also reimburse the Service Provider for any and all expenses, charges, taxes and costs 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 any payment to a third party for any annual government or registration fees as may be required in connection with the proper administration of the Client’s affairs, the Settlement and Client Entities. Such expenses, charges and taxes may be subject to prior agreement with the Client at an agreed limit, depending upon the jurisdiction of the Client or the jurisdiction of the Client Entity. Please refer to the Agreement for more specific details.
6.2 The fees of the Service Provider and any and all amounts, expenses, charges, taxes, costs incurred by or payable to the Service Provider in accordance with the terms of the Agreement and/or these Terms and Conditions shall be a first charge on the balances and/or other assets of all accounts of the Client, the Settlement and/or Client Entities and furthermore the Service Provider shall have the right of set-off against the balances or other assets of all accounts of the Client, the Settlement and/or Client Entities. Upon default by the Client, the Service Provider may, at its discretion, cause the Trustee to consider, without prejudice to the Trustee’s discretion, to dispose of any asset over which it has a right of lien, either by enforced sale or in the open market.
6.3 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.
6.4 In the event of termination of the Agreement in accordance with clause 9.1 or 10 of these Terms and Conditions, no credit or pro-rated refund will be given for any portions of prepaid annual fees paid by the Client or Client Entity or the Trustee as trustee of the Settlement to which Specified Services are provided and all outstanding fees and expenses incurred to the point of termination shall be paid by the Client or Client Entity or Trustee to which Specified Services are provided in accordance with the terms of each invoice issued by the Service Provider.
6.5 Notwithstanding clause 4.5 of these Terms and Conditions, in the event that the Service Provider is required to bring a Claim to collect any unpaid fees, expenses, charges, taxes and/or costs or in respect of any other breach of the terms of the Agreement and/or these Terms and Conditions by the Client, the Client understands, agrees and warrants that it will pay properly incurred lawyers/ attorneys fees, as well as interest at the highest rate permitted by the law on the amount of any fees, expenses, charges, taxes or costs due to the Service Provider and the Service Provider’s fees calculated at the relevant hourly rate/s in respect of time incurred by the Service Provider in instituting such Claim, even if not recoverable by law, all such fees, expenses, charges, taxes, interest and/or Costs to become payable immediately upon demand. The Client further understands that the Service Provider and/or the Trustee has the right to retain all files, papers and other property coming into its possession in connection with its engagement without liability to the Client and/or any Client Entity and/or in respect of the Settlement until the Service Provider has been paid all fees, expenses, charges, taxes, costs and interest due to it under the Agreement and/or these Terms and Conditions, without deduction, counterclaim or set-off.
6.6 The Service Provider reserves the right to charge for its administrative costs in relation to explaining, justifying or providing details, or pursuing or arranging payment, of any outstanding invoice, on a time-spent basis.
7 CONFLICT OF INTERESTS
7.1 Where an actual or potential conflict between the Client’s interests and the interest of another client of the Service Provider arises during the Service Provider’s appointment, the Service Provider 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 and/or the Trustee may have to resign as trustee of the Settlement.
7.2 The Client will notify the Service Provider if it has reason to believe that a conflict has arisen or may arise.
8 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 distributions or assets under the Agreement and/or these Terms and Conditions and confirms such funds are tax compliant.
8.3 The Client acknowledges and agrees that following the implementation into Applicable Law of automatic tax or other information exchange agreements between the country of incorporation of the Service Provider and/or the Trustee and other countries from time to time (whether based on bilateral agreements or multilateral global initiatives such as, without limitation, the Organisation for Economic Co-operation and Development’s Common Reporting Standard), the Service Provider may be required to collect reportable information and to disclose reportable information to foreign tax or governmental authorities either directly or via the relevant government. The Service Provider’s obligation to obtain, disclose and exchange reportable information could extend beyond the ultimate beneficial owner of the Client Entity or the beneficiaries of the Settlement to other relevant parties such as the economic settlor, directors, minority shareholders and persons who receive payments from the Client Entity or the Settlement. The Client therefore hereby agrees to hold the Service Provider harmless in respect of any collection or disclosure of reportable information, including fully indemnifying the Service Provider for any costs and expenses (including legal or other professional fees or expenses) incurred or sustained by the Service Provider, howsoever arising, in connection with, or in relation to, any collection or disclosure of such reportable information.
9 TERMINATION BY THE CLIENT
9.1 Subject to clause 9.2, the Specified Services may be terminated by the Client serving not less than three (3) months’ written notice to the Service Provider. Termination shall not be effective until the Client has discharged, or caused to be discharged all obligations to the Service Provider and/or the Trustee, including obligations for which the Service Provider and/or the Trustee could be made liable; all outstanding fees, expenses, taxes, charges and costs, and any interest thereon, due to the Service Provider are paid in full; and the Client or new trustee, (as applicable) has provided an indemnity to the Service Provider, the Trustee and any other officer in respect of the Settlement, in a format acceptable to the Service Provider and/or the Trustee, in their absolute discretion. Notwithstanding the aforementioned, the Client may not terminate the Agreement within one (1) year of it becoming effective unless by virtue of clause 9.2 hereof.
9.2 The Client may by written notice immediately terminate the Agreement or suspend the performance of all or any of its obligations under it without liability for compensation or damages i) if the Service Provider is in material or repeated breach of any of the terms and provisions of the Agreement; ii) 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, for the purpose of and followed by amalgamation or reconstruction; or iii) if a receiver or administrative receiver of the Service Provider’s property is appointed.
10 TERMINATION BY THE SERVICE PROVIDER
The Service Provider may by written notice immediately terminate the Agreement or suspend its performance of all or any of its obligations under the Agreement and/or these Terms and Conditions without liability for compensation or damages i) if the Client is in material or repeated breach of any of the terms and provisions of the Agreement and/or these Terms and Conditions; ii) if the Client has become or is declared bankrupt or insolvent or unable to pay its debts as they become due; iii) if the Client or a Client Entity 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) if an event occurs that, in the reasonable opinion of the Service Provider, renders the continued performance of the Specified Services under the Agreement and/or these Terms and Conditions to the disadvantage of either party to the Agreement and/or these Terms and Conditions; v) if a receiver or administrative receiver of any of the property of the Client or a Client Entity is appointed; or vi) in any other case subject to three (3) months’ written notice.
11 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.
12 SAFEKEEPING
All items held in safekeeping by the Service Provider on behalf of the Client 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 items held in safekeeping.
13 DATA PROCESSING
13.1 In providing the Specified Services and in order to meet legal requirements regarding anti-money laundering and terrorist financing, the Client’s Personal Data (as defined below) may be collected, used, consulted, recorded, stored, adapted, transferred or otherwise processed by the Service Provider in accordance with the governing law of the Agreement or if none, the country of incorporation of the Service Provider and, so far as applicable, Regulation (EU) 2016/679 (General Data Protection Regulation) (the “GDPR”) and any other relevant legislation. In such case, the Service Provider 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 provided to the Service Provider by or in respect of the Client 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.
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 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, whether inside or outside of Gibraltar, the United Kingdom and/or the European Union. In pursuing such purposes, Personal Data will be processed on the basis of the necessity to perform any contract aiming at providing 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.
13.4 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.
13.5 Only if it is necessary for the performance of the Specified Services, may the Service Provider transfer copies of the Client’s Personal Data to third countries outside Gibraltar, the United Kingdom, the European Union or to a country that may not have an adequacy decision by the European Commission, provided always that such transfer is in accordance with the GDPR and any other relevant legislation.
13.6 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; (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 Personal 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 in respect of the Personal Data; and (f) to have its Personal Data transmitted directly from the Service Provider to another data 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 with which the Service Provider complies. The above rights are also more fully set out in the data protection notice of the Service Provider which can be found on its website www.fidux.com.
13.7 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 the Settlement. 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 located in the jurisdiction of the Client’s habitual residence, place of work, or where the alleged infringement happened.
14 GENERAL
14.1 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.
14.2 Notwithstanding any other term of the Agreement and/or these Terms and Conditions, if the Service Provider is prevented, hindered, delayed from performing, and/or incapable or unable to perform its obligations under the Agreement and/or these Terms and Conditions, due to or in connection with an event, circumstance, change in law or regulation, or cause beyond its control (each an “Event”), the Service Provider shall not be in breach of the Agreement and/or these Terms and Conditions or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
14.3 Where the Service Provider will cause the Trustee to provide trustee services in respect of the Settlement and unless (1) required by law, regulation or contract or (2) specifically requested by the Client, insurance cover will not be sought by the Trustee and the Client acknowledges that there may be a risk to the assets of the Settlement.
14.4 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.
14.5 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 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.
14.6 The Service Provider may from time to time amend these Terms and Conditions:
14.6.1 to reflect changes in relevant laws and regulatory requirements; and/or,
14.6.2 to implement minor technical adjustments and improvements.
These changes will not materially affect the Specified Services provided under the Agreement or any agreed fees.
14.7 In addition, the Client understands and agrees that the Service Provider may make more significant changes to these Terms and Conditions from time to time. The current Terms and Conditions will be updated and can be viewed on the Service Provider’s website https://www.fidux.com/ (the “Site”). Such Terms and Conditions shall be effective as of the date that is three months from the date of publishing on the Site (the “Effective Date”) and this shall constitute adequate and constructive notice to the Client of any changes. The Client therefore acknowledges that it is responsible for regularly reviewing the Site and that it has sole responsibility to review the Terms and Conditions from time to time. The Client’s continued use of the Services following the Effective Date will constitute binding acceptance of such modifications under the Agreement and/or the Terms and Conditions.
14.8 Businesses and people are often victimised by the creation and dissemination of computer viruses, hackers, malware, ransomware, or similar destructive electronic programs. The Service Provider takes these issues seriously and has invested in software and systems that identify and offer protection against these issues as are necessary and/or required by law, however, the Service Provider is not able to guarantee absolute security. The Service Provider updates its system on a regular basis using the latest version of the software provided by our various vendors. The Client acknowledges that the Service Provider cannot guarantee that the Service Provider will not be successfully attacked or that the Client’s documents, emails and confidential information, or those of a Client Entity or the Settlement, will not be compromised and accordingly, the Service Provider shall not be held responsible for any such issues and, for the avoidance of doubt, the Service Provider makes no warranties regarding the same.
[The following clause 14.8 of these Terms and Conditions shall only apply to Specified Services provided or to be provided by Fidux Trust Company Limited, England and Wales]
14.9 Except for where expressly provided and/or where the context allows, in both cases for the benefit of the Trustee (which for the avoidance of doubt includes each of its parent companies, subsidiary companies, consultants, agents, associated and affiliated companies and its and their directors, shareholders, officers and employees, and their successors and assigns, providing services pursuant to the Agreement and/or these Terms and Conditions), no person who is not a party to the Agreement and/or these Terms and Conditions shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement and/or these Terms and Conditions.
14.10 Should the Client have a complaint regarding the service received from the Service Provider, it should be sent in writing and addressed to the Chief Executive Officer of the Service Provider, where it will receive immediate attention.
15 GOVERNING LAW AND JURISDICTION
15.1 These Terms and Conditions shall be governed by the governing laws of the relevant country as more particularly described in the Agreement or if none, the country of incorporation of the Service Provider (the “Relevant Country”), which shall be the exclusive forum for the interpretation and adjudication of any actions or claims arising herefrom.
15.2 The Client irrevocably agrees to submit to the jurisdiction of the courts of the Relevant Country. The Client waives any objection to such proceedings in the courts of the Relevant Country on the grounds of venue or on the basis that such proceedings have been brought in an inconvenient forum. 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.
16 MISCELLANEOUS
If any of the terms of these Terms and Conditions conflict with the terms agreed under the Agreement, the relevant term of the Agreement will govern for that service.
17 IMPORTANT NOTICE
The Service Provider and the Trustee provide fiduciary services pursuant to the Agreement and/or these Terms and Conditions only and no representation made by any director, officer, employee, consultant or agent of the Service Provider and/or the Trustee, whether ancillary and incidental to the services provided by them or otherwise, shall constitute tax advice. Clients and potential clients are therefore advised to consult their professional advisors concerning possible taxation or other consequences of purchasing, holding, selling or otherwise disposing of assets under the laws of their country of incorporation, establishment, citizenship, residence or domicile, or elsewhere.