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Terms and Conditions (December 06)
1. Introduction
This document provides an explanation of the Terms and Conditions upon which EFG Offshore
Limited provides Company and Trustee administration services.
EFG Offshore Limited is a member of the EFG Group and regulated by the Jersey Financial Services
Commission to carry out Company and Trust Administration Services under the Financial Services
(Jersey) Law 1998.
For the purposes of clarity, the following terms referred to in these Terms and Conditions will have
the attached meanings:
"Appointees" means and includes any person who shall act as a director or other officer,
trustee, manager, signatory or shareholder of any Managed Entity.
"Client" means any persons instructing us or to whom Services are or are to be
provided and includes the beneficial owners and, where relevant, any
instigator of a Managed Entity and shall include in the case of an individual,
their heirs, personal representatives and assigns and shall in the case of more
than one person mean such persons jointly and severally and shall include the
survivor or survivors of them and their heirs, personal representatives and
assigns of each of them and in the case of a company or other body corporate
shall include its successors and assigns.
"EFG Offshore" means and includes EFG Offshore Limited, its subsidiaries, affiliates and
their respective successors in title.
"Employees" means and includes the directors, other officers and staff of EFG Offshore
from time to time.
"Managed Entity" means and includes any body whether corporate or unincorporated and
includes any corporation, company, partnership, trust, association or other
entity in relation to which Services are or are to be provided.
"Services" means and includes any acts done or to be done or performed for or on behalf
of the Managed Entity by EFG Offshore or any Employee or Appointee.
"Definition" words and phrases importing the singular shall include the plural and the
masculine gender shall include the feminine and words importing persons
shall include bodies of persons and include corporate or unincorporated.
"We", "us" and "our" shall refer to EFG Offshore, the Employees and the Appointees or any of
them, as applicable.
"You" and "yours" shall refer to the Client and any Managed Entity or any of them, as
applicable.
Clause headings are inserted for convenience only and shall not affect the construction or
interpretation of these Terms & Conditions.
2. Fees and Payment Terms
- Unless otherwise agreed in writing payment for the Services we provide shall be in
Pounds Sterling in accordance with our published Fee Tariff which may be revised
from time to time and forms part and should be read in conjunction with these Terms
and Conditions. We will also be entitled to reimbursement for any expenses or
disbursements incurred by us in the provision of such Services.
- Invoices raised against any Managed Entity will be on a quarterly basis (unless
otherwise agreed in writing) and may include fees in advance for Services.
- Settlement of our invoices will be deducted from funds controlled by EFG Offshore
and the Client must ensure that sufficient funds are available, either held by or
connected with the Managed Entity, to cover all fees, liabilities, disbursements of the
Managed Entity and expenses incurred by us in the provision of Services for the
Managed Entity and are in accordance with the Administration Agreement which
forms part of these Terms and Conditions.
- All fees and expenses are required to be paid in full within 30 days of the date of
invoice. If, for any reason, outstanding fees and expenses are not settled within this
time, interest at a rate of 1% per month or part thereof may be charged, compounded
annually and we shall be under no obligation to carry out any further work for you on
any matter or to pay any sums on your behalf or on behalf of the Managed Entity
until all outstanding amounts have been paid.
- We shall be entitled to retain at our discretion any benefit direct or indirect received
in respect of commissions, fees or any other remuneration generated in respect to a
Managed Entity, but not limited to the aforementioned. Please note, EFG Offshore
do not seek any commissions as a term of doing business with any third party.
- In the event of non-payment of all or any part of any fees, expenses or disbursements
due to us or which EFG Offshore are liable to pay on your behalf or in respect of
which you become liable to us in any other manner, then EFG Offshore shall have a
lien over, or the right not to release from our possession or control, all or any
documents or assets, including assets held on your behalf or to your order or on
behalf of or to the order of any company or other body in common ownership with
you or otherwise connected or affiliated to you in any manner, until such time as all
such fees, expenses, disbursements or liability due and payable are discharged. For
the avoidance of doubt, this lien shall apply to all documents and assets held in
relation to the matter in respect of which the fees, expenses, disbursements or liability
have been incurred and in relation to any other matter whatsoever relating to you.
Further, if we should cease to act for or in relation to you, a final invoice will be
submitted and EFG Offshore reserves all rights to exercise the right of the lien
aforesaid over all documents and assets held on your behalf or in relation to you until
such time as the final invoice is discharged in full.
- Where another party might agree to pay your costs, or where some costs may be
recoverable in litigation, or from your insurers, the responsibility to meet EFG
Offshore fees, expenses and disbursements in a timely fashion nevertheless remains
yours regardless of any arrangements with, or rights against other parties or any court
order or anticipated order.
3. Provision of Services
Responsibilities of the Client
In providing Services to Managed Entities, the Client confirms that:
- Any assets held by or connected with the Managed Entity have not been derived or
been otherwise connected with any illegal or immoral activity.
- The Managed Entity will not be involved directly or indirectly in any unlawful
activity or will not be used for any unlawful or immoral purpose.
- All transactions completed in the name of or for the account of the Managed Entity
must be advised to EFG Offshore.
- Any instruction given by the Client will be accurate and will not contain any
falsehoods or be misleading in any way or involve any unlawful act.
- Where EFG Offshore provides Officers for a Managed Entity, the Client will not take
any action, or enter into any contract on behalf of the Managed Entity without our
consent.
Further obligations
- These Terms and Conditions will apply in respect of all services and implied services
provided by EFG Offshore whether or not there is any written or other express
acceptance thereof by the Client.
- The Client may be requested to provide details of the original source of wealth,
source of funds, references and explanations of certain transactions and will cooperate
promptly with all such requests.
- It remains the responsibility of the Client to obtain any specialist advice and to issue
copies of such advice when requested to EFG Offshore. This extends to all
transactions undertaken by EFG Offshore on behalf of the Client in respect of the
Managed Entity. EFG Offshore does not offer or provide advice on taxation or other
financial consequences which might be caused or suffered, directly or indirectly as a
result of any transactions in which EFG Offshore is involved on the Clients or
Managed Entity's behalf and are not licensed to give investment advice.
- The Client will notify EFG Offshore prior to any alteration in the Client's or any other
person's interest in the Managed Entity and provide upon request full disclosure of
any and all information concerning the Managed Entity.
- The Client will not (without our written consent) use our name, address, electronic
address, telephone/telex/facsimile numbers or allow the same to appear on any note
paper or documentation belonging to or connected with the Managed Entity or in any
advertising material.
- All documentation and electronic data held by EFG Offshore is the sole property and
for the sole use of EFG Offshore and neither the Client nor the Managed Entity or
any Officer thereof shall have any right, access or control thereover.
- By acknowledgment of these Terms and Conditions whether signed or not the Client
renders EFG Offshore, its Employees and Appointees harmless to and indemnifies
them from all actions, suits, proceedings, claims, demands, costs, expenses, liabilities
whatsoever which may arise in connection with the Managed Entity or from the
provision of Services in any way.
- The Client will conform and adhere to any current or future Corporate or Trustee
Administration Agreements.
Responsibilities of EFG Offshore
In providing Services for Managed Entities, Clients should be aware that:
- In accordance with anti-money laundering legislation, EFG Offshore may be required
to provide certified true copies of documents that verify the identity of the Client to
any banker, investment manager or other intermediary, in order to open accounts or
enter into mandates on behalf of the Managed Entity.
- In certain circumstances, EFG Offshore, its Employees and Appointees may be
required or consider it necessary to give evidence or produce information to any
governmental, regulatory, policing, judicial, revenue or other authorities, officers or
inspectors (whether in Jersey or elsewhere) in connection with the affairs of the
Managed Entity or the Client. However, disclosure will not usually be made to third
parties unless required by law or where the failure to do so would be prejudicial to the
interests of the Managed Entity, its Appointees or EFG Offshore and the Client
hereby authorises EFG Offshore, its Employees and Appointees to make such
disclosures.
- Save as set out in the previous paragraph, all information regarding the Managed
Entity's business and affairs will be regarded as and kept confidential by us at all
times save for the purpose of instructing and dealing with other advisers acting on the
Client's or Managed Entity's behalf, or if it is already in the public domain or where
the Client instructs EFG Offshore to disclose or consent to disclosure by us of
information, specifically or by implication, to a third party.
- EFG Offshore shall be under no duty or obligation whatsoever to the Client or the
Managed Entity or any other person in circumstances where the fulfilment of that
duty or obligation may (as determined by EFG Offshore in its own absolute
discretion) involve EFG Offshore in the commission of a criminal offence or create a
liability for EFG Offshore as constructive trustee to any third party as a result thereof.
- Other than liabilities arising from fraud or gross negligence EFG Offshore, its
Employees and Appointees are indemnified by the Client and this indemnity shall
continue in force without limit in time or circumstance and without prejudice to any
other indemnity in favour of EFG Offshore, its Employees and Appointees.
- We are authorised to take any steps which in our absolute discretion we think fit to
protect or further the assets or interests of the Managed Entity and to employ at our
discretion such advisers in whatever capacity at the expense of the Managed Entity. • EFG Offshore will produce accounting records as required by law for the Managed
Entity.
4. General
- If for any reason the Client fails to observe any of the Terms and Conditions or
obligations on the Client's part EFG Offshore shall be entitled to immediately
withdraw all and any Services previously provided.
- The Client or EFG Offshore are entitled to issue 30 (thirty) days written notice to
terminate the provision of services or management of the Managed Entity without
giving cause or providing explanation. Such notice will render the Client to
immediately give us details of a new administrator and offices to which to transfer the
books and records of the Managed Entity. Any such transfer will be completed within
30 (thirty) days of the date the instructions are issued by us or from the date the
instructions are received from the Client at our offices unless there are outstanding
matters to be resolved or consents to be obtained, in either case outside of the direct
control of EFG Offshore, before such transfer can occur. In such circumstances EFG
Offshore will charge for fees incurred and any disbursements or expenses connected
or associated with the orderly termination or the transfer of the Services of any
Managed Entity to another professional adviser, if applicable.
- On the cessation of a relationship in part or whole EFG Offshore, its Appointees or
Employees shall be entitled to make such retentions and receive such indemnities as it
may require in respect of any actual or contingent liabilities.
- These Terms and Conditions and the Fee Tariff of EFG Offshore will be altered from
time to time and any variations thereto in force now or in the future will only be sent
to the Client in hard copy form when requested in writing by the Client. However,
these terms and conditions and any future variations will be published on the EFG
Offshore Website at www.efgoffshore.com by way of public notice to current and
prospective Clients and other consumers of services provided by EFG Offshore. If
we have given any person written notice of the existence of these terms and
conditions on our Website and that person has not requested in writing a hard copy
format to be sent to him, then, by the publication of these terms and conditions and
any variations thereto on our Website, that person shall be deemed to have agreed to
these terms and conditions and all variations thereafter.
- EFG Offshore are authorised to act without enquiry on instructions, requests or
advice from the Client or any person we believe to be duly authorised by the Client in
all matters concerning the Managed Entity or its affairs. Where EFG Offshore are
instructed by joint parties, we will be entitled to rely on the specific instructions of
any one of such joint parties or any officer of the company or association unless
previously notified in writing. Such instructions, requests or advice may be
communicated orally or in writing or by electronic means or otherwise subject to the
following paragraphs.
- EFG Offshore will act upon any electronic mail and facsimile instructions, requests or
advice, which the Client may send strictly for convenience and at the Client’s risk;
and we reserve the right to ask the Client to confirm any such requests in writing.
The Client acknowledges the risks inherent in giving instructions by electronic mail
or facsimile, in particular the risk that they may be fraudulently or mistakenly given
or written, intercepted, altered and may not be received in whole or part by the
intended recipient or within a particular timescale.
- The Client (if more than one person, jointly and severally) hereby indemnifies EFG
Offshore and undertakes to keep EFG Offshore indemnified against all and any
losses, claims, actions, proceedings, demands, damages, costs and expenses incurred
or sustained by EFG Offshore of whatever nature and howsoever arising out of or in
connection with EFG Offshore acting, declining or failing to act in accordance with
such electronic mail or facsimile instructions, requests or advice or for any failure of
communication, howsoever transmitted or dispatched, or for any interference with or
interception or alteration to the communication or if transmitted by unauthorised
persons. The Client shall have no liability to EFG Offshore for any loss suffered by
EFG Offshore due to the fraud, wilful misconduct or gross negligence of EFG
Offshore or its Employees.
- It is the client's responsibility in relation to the Services, to provide EFG Offshore
with complete, accurate and timely information and documentation when requested
and to carry out any obligations ascribed to and undertaken by the Client or others
under the Client's control.
- On no account shall EFG Offshore, its Employees or Appointees incur any liability
for failure on their part to comply wholly or partly with any instruction, request or
advice which is not in writing and furthermore shall not be responsible for any nonreceipt
thereof or any errors or ambiguity therein or any lack of authority on the part
of the person giving or making the same and in the case of written instructions,
requests or advice shall not be so responsible in the absence of gross negligence.
- EFG Offshore will not incur any liability for any loss arising by reason of a failure of
communication to or from EFG Offshore, howsoever transmitted or dispatched, or for
any interference or interception made of any communications in transit or if
transmitted by unauthorised persons whether or not resulting from an act or omission
on our part.
- There will be no liability to EFG Offshore, its Employees or Appointees for any
failure or delay in the performance of the obligations under these Terms and
Conditions arising out of or caused directly or indirectly by circumstances beyond its
reasonable control (including acts of god, earthquakes, fires, floods, wars, civil or
military disturbances, sabotage, terrorism, epidemics, riots, interruptions, loss or
malfunctions of utilities, computers (hardware or software) or communication
services, accidents, labour disputes, acts of civil military or authority or governmental
actions provided however that EFG Offshore, its Employees and Appointees shall use
its best endeavours to resume performance as soon as reasonably possible.
- EFG Offshore retains all copyright and other intellectual property rights in everything
developed, designed or created by EFG Offshore either before or during the course of
carrying out the Services, including systems, methodologies, software, know-how,
and working papers, unless otherwise agreed between us. EFG Offshore also retain
all copyright and other intellectual property rights in all reports, written advice or
other materials provided by EFG Offshore to the Client or Managed Entity.
- Each clause, term or provision of these Terms and Conditions constitutes a separate
and independent provision of these Terms and Conditions. If any clause, term or
provision of these Terms and Conditions is determined by any court or authority of
competent jurisdiction to be void, illegal or unenforceable, the remaining clauses,
terms and provisions shall continue in full force and effect.
- EFG Offshore are registered to hold and process personal data under the Data
Protection (Jersey) Law, 2005. This data may be held and processed in Jersey or
elsewhere. EFG Offshore reserves the right to use any such data for marketing and
promotion of its services.
5. Questions or Complaints
- We hope that any questions or concerns that a Client may have in respect of the
services provided by us may be satisfactorily resolved by discussions between the
Client and the Director of EFG Offshore responsible for the Client's affairs.
- EFG Offshore will endeavour to send an acknowledgement in writing within twentyfour
hours of any complaint being received and to send a full response as soon as the
complaint has been properly and fully investigated. In the event of any
dissatisfaction, issues may also be referred to the Head of our compliance department
(name available upon request), who may refer the matter to a Director not otherwise
involved in the Client's affairs for an independent review.
- EFG Offshore is required to maintain a record of all complaints and this is available
for inspection by officers and employees of the Jersey Financial Services
Commission.
- Any dispute being incapable of being resolved as described above, then the Courts of
Jersey shall have non-exclusive jurisdiction to hear the complaint or dispute and
afford judgement.
- These terms and conditions shall be governed by and construed in accordance with
the laws of the Island of Jersey and the Client hereby agrees to submit to the nonexclusive
jurisdiction of the Jersey Court in this respect.
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