Fiduciary Management Limited
These general terms and conditions of business set out important information regarding our engagement as a service provider to each of you and the Company (as defined below). You should read these general terms and conditions of business carefully and in conjunction with our Engagement Letter and retain them for future reference.
1. Definitions and Interpretation
1.1.In these general terms and conditions of business, and this Agreement generally, the following words and expressions shall, unless the context otherwise requires, have the following meanings:
||means the agreement between us, you and the Company which is contained in these general terms and conditions of business and the Engagement Letter (as the same may be amended, supplemented or varied from time to time by us) and forms the basis of the contract between us and you;
||means the company information sheet and application form issued by us to you for completion in relation to this engagement;
||means an agent of the client, a person authorised by the Client to give instructions, recommendations or requests to us in relation to the Company or the Services, or where the context requires or permits a person authorised by the Company to give instructions, recommendations or requests to us in respect of the Company or the Services;
||means the Bank of England base rate from time to time;
||means the person who hereby instructs us to provide the Services to the Company, and references in these general terms and conditions of business to “you”, “your” and “yours” shall be construed as references to the Client;
||means the corporate body or corporate bodies, or partnerships, including, but not limited to companies, limited liability companies (LLCs) and limited liability partnerships (LLPs) to which we provide the Services;
|Customer Due Diligence Information
||has the meaning given in clause 7.5;
||means the letter entered into between us in connection with the provision of our Services and as may be amended from time to time;
||means the fees set out in the Engagement Letter as may be varied from time to time;
||means Fiduciary Management Limited (a company incorporated in Gibraltar with company number 6507 and which is licensed by the FSC), its successors, assigns and transferees and references in these general terms and conditions of business to “we”, “us” and “our” shall be construed as references to Fiduciary or where the context requires or permits, to any Group Company;
||means the Gibraltar Financial Services Commission;
||includes all Gibraltar primary and secondary legislation, all regulations, rules, orders, guidance notes issued by the FSC or any other Gibraltar regulator, court or governmental authority, all anti-money laundering, counter financing of terrorism or anti bribery laws, regulations and guidance and any direction or other regulatory decision made by the FSC or any other Gibraltar regulator, court or governmental authority;
||means Fiduciary, its subsidiaries and its associated companies including but not limited to Fiduciary Management Limited, Fiduciary Trust Limited, Fiduciary Directors Limited, and Fiduciary Nominees Limited;
||means Fiduciary, its Group Companies and each of their employees, agents, officers and servants from time to time (including former employees, agents, officers and servants);
||includes an invoice, fee note or similar request for payment issued by us;
||in respect of a company, means a subsidiary, holding company or subsidiary of the same holding company of that company; in respect of a trust, means a settlor, protector, trustee, beneficiary or any relative of such persons; in respect of an individual, means any relative, business associate, company in which the individual or any relative has an interest whether as an officer or owner;
||means professional fees and disbursements including, without limitation, any legal, accounting or other fees incurred by Fiduciary, any Group Company or the Company in any jurisdiction;
||means such information as we determine or Gibraltar Law requires in relation to applicable international reporting obligations and/or best practice including, for example but without limitation, information on you, the Company and others regarding residence, domicile, transactions, source of funds, value of investments and assets, relationships;
||means the services listed in the Engagement Letter as may be amended, varied, extended or reduced from time to time;
1.2. A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Where more than one person has an obligation or liability under this Agreement, their obligation or liability shall be joint and several.
1.4. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.6. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time.
1.7. Headings shall not affect the construction of a clause in this Agreement.
2.1.At your request, we agree to provide the Services to, and in respect of, the Company, subject to prompt payment of our Fees. We agree to observe all obligations imposed on the Company by all relevant authorities and make all records available as required by law or authorised by you.
2.2.The provision of the Services is governed by the terms of this Agreement, Gibraltar Law and our internal procedures including, without limitation, our anti-money laundering and counter terrorism financing procedures (as amended from time to time).
2.3. You acknowledge and hereby agree that we are under no obligation to monitor any financial markets (which for the avoidance of doubt extends to crypto currency markets) as part of the Services.
2.4. The Fees and Services under this Agreement may be varied from time to time. Where you or the Company requests us to provide additional Services, we will (where practicable) provide an updated Engagement Letter to you and the Company. Where this is not practicable, each of you and the Company agrees that we may charge Fees for these additional Services based on the prevailing Engagement Letter or such Fees as we communicate to you from time to time.:-
2.5. We reserve the right to suspend or refuse to provide any Services and to terminate the Agreement where:-
2.5.1. you or the Company have failed to provide any documentation or information requested by us; or
2.5.2. we have enquired into any transaction for purposes such as, but not limited to, the prevention of fraud or crime and have not received such information or explanation we believe to be necessary in the circumstances; or
2.5.3. we suspect that you or the Company possesses the proceeds of crime; or
2.5.4. any requirements of our internal procedures or compliance controls are not satisfied to our reasonable satisfaction; or
2.5.5. it is in our interests or the Company’s interests to do so; or
2.5.6. you or the Company is in breach of this Agreement.
2.6. You acknowledge and agree that where we provide director services as part of the Services, we shall have a statutory obligation to maintain the Company in good standing and you therefore authorise us to make payments from any monies held by us on behalf of the Company in this regard where such costs have not been met by you.
2.7. You acknowledge and agree that we may, directly or through an intermediary, instruct a third party contractor to carry out some or all of the Services, as applicable. In such circumstances, we shall pay the fees and charges of any third party contractors on your or the Company’s behalf and you hereby undertake to fully reimburse us in this respect. We will take reasonable care in selecting and instructing a third party contractor in this regard. However, you hereby accept and acknowledge that we have no control over the activities of a third party contractor and therefore accept no responsibility for the services or level of services provided by such third party contractors, or for any errors or omissions in their services, work or products.
2.8. You acknowledge and agree that you must obtain prior written approval from us before placing any advertisements or public announcements in any medium concerning either us or the Company.
2.9. You hereby undertake to insure all assets and property of the Company and fully indemnify and hold harmless us against all claims made due to, or arising in connection with, the lack of appropriate insurance.
3. Instructions and Communication
3.1. Where you are lawfully permitted to give us instructions in relation to the Company, we will act on those instructions subject to our overriding regulatory, fiduciary and legal duties under Gibraltar Law and other applicable laws.
3.2. Where, as part of the Services, we act as directors of the Company, we are willing, in principle, to give consideration to your lawful requests regarding the activities of the Company; however, we shall not be bound by those requests. Under Gibraltar law, directors owe a common law fiduciary duty to those companies of which they are a director, and as part of this owe a duty of skill and care to those companies.
3.3. We are hereby authorised, but are not obliged, to rely upon or to act in accordance with any instruction which may from time to time be or purport to be given in writing, by fax, telephone or electronic mail by you, any Authorised Person or the Company. You hereby agree that we may make such enquiries as we deem necessary in order to ascertain the authority or identity of the person or entity giving or purporting to give such instructions.
3.4. You agree that we may communicate with you, any Authorised Person and the Company by post, courier, delivery service, fax, email (including unencrypted email), video conference or telephone (including VoIP, Skype or similar). We shall have no liability for any loss, damage or liability incurred by you or the Company by reason of the use of email (whether arising from viruses or otherwise) and you and the Company hereby release us from any such liability. You agree that our routine and standard method of communication is by email.
3.5. You hereby agree to indemnify us against all losses, claims, actions, proceedings, demands, damages, costs and expenses incurred or sustained by us, howsoever arising, in connection with, or in relation to, any such instructions or requests given by, or purported to be given by you, any Authorised Person or the Company.
3.6. We shall not be liable to you or the Company or any other person for any loss, damage or expense incurred directly or indirectly as a result of a delay by us in acting on your or, if relevant, the Company’s or any Authorised Person’s instructions, requests or recommendations unless such delay was caused by our wilful default or fraud. For the avoidance of any doubt, a delay in acting on any instructions, requests or recommendations shall not amount to wilful default.
3.7. We shall not be liable to you or the Company or any other person for any loss, damage or expense incurred directly or indirectly as a result of us acting on your or, if relevant, the Company’s or any Authorised Person’s instructions, requests or recommendations unless such loss was caused by our wilful default or fraud.
3.8. Any notice in writing required to be given under this Agreement may be given by post, courier or hand delivery to the last notified address (or in the case of a company, the registered office) of the part being served and shall be deemed duly served:-
3.8.1. if hand delivered, upon delivery;
3.8.2. if by courier, upon delivery provided proof of delivery is obtained;
3.8.3. if by post within Gibraltar, 2 business days after being posted; or
3.8.4. f by post outside Gibraltar, 7 business days after being posted.
3.9. Clause 3.8 does not apply to the service of any proceedings or other documents in any legal action.
4. Fees and Charges
4.1. We will charge Fees for the provision of Services and each of you and the Company agrees that we are entitled to charge Fees.
4.2. Each of you and the Company covenants and agrees to be jointly and severally responsible for the prompt payment of (a) our Fees, together with any applicable taxes and all disbursements (Fees, taxes and disbursements are together referred to as “Fees & Disbursements”) which we incur in relation to the Services and (b) any other sums which we are entitled to charge under the terms of the Agreement. You agree that you are liable for all such amounts as a principal debtor and that you have received consideration for, or in respect of, such amounts.
4.3. We will raise periodic invoices for Fees & Disbursements and any other sums due under the Agreement. Invoices are due and payable within 30 days of issue. In the event that the Company fails to pay our invoice within 30 days, each of you and the Company hereby irrevocably authorises us to take payment of each invoice issued by us from any bank account under our control or from monies held in our customer bank account on behalf of either the Company or you.
4.4. In the event that there is an insufficient credit cash balance in the Company’s bank account or the relevant customer bank account to cover any outstanding invoices due, we will make a demand for immediate payment to each of you and the Company. In the event that any invoice remains outstanding for 60 days or more after issue, we reserve the right to sell any investment or asset owned by the Company or you to cover any charges whenever there is an insufficient credit cash balance in the Company’s bank account or the relevant customer bank account to cover such charges and each of you and the Company hereby irrevocably agrees to appoint us as attorney in this regard.
4.5. We may increase or vary any of our Fees and charges from time to time and, where we do, we will notify you of any such change by email, telephone, fax or in writing. We may from time to time request you or the Company to provide a deposit on account towards fees and disbursements.
4.6. We reserve the right to exercise a lien over any documents, files or assets belonging to the Company and/or you which may be in our possession, in respect of any and all outstanding Fees & Disbursements.
4.7. We will charge for any work carried out even if the transaction or matter does not proceed to completion or as envisaged.
4.8. In the event that any invoice is outstanding, we reserve the right to charge interest on all overdue amounts at a rate of 5% per annum above Base Rate from the date of the invoice until paid.
4.9. We reserve the right to charge for our administrative costs in relation to explaining, justifying or providing details, or pursuing or arranging payment, of any outstanding invoice at our usual hourly rates as set out in the Engagement Letter.
4.10. We reserve the right not to action any request from you, including inter alia a request for transfer, exit or strike off or fulfil any Services in respect of the Company until all Fees & Disbursements, or any other applicable fees arising under this Agreement have been paid in full.
5. Customer Monies, Customer Accounts and Company Accounts
5.1. Unless otherwise specifically agreed with you or the Company, where we hold funds on behalf of you or the Company, these will be held in our general customers account (a current account). Any interest accrued on funds held by us on behalf of you or the Company shall be for our own account.
5.2. Where we agree to hold funds on behalf of the Company in a specific account in the name of the Company, any interest accruing on such account shall belong to the Company.
5.3. We accept (and you and the Company agree that we have) no liability whatsoever for any loss, damage or liability incurred directly or indirectly by the Company and/or you or any other person as a result of the insolvency, liquidation, winding up, failure, collapse, default or similar event of a bank which operates any of our general customers’ accounts and/or the Company’s accounts and which results directly or indirectly in such bank being unable, in whole or in part, to repay any credit balance in any of our general customers’ accounts and/or the Company’s accounts (the “Bank’s Failure to Repay”). The Company and you hereby agree to hold us and each Indemnified Person harmless in respect of the Bank’s Failure to Repay.
6. Your Tax/Legal Compliance
6.1. You hereby warrant and confirm that you have obtained independent tax and other financial advice (including in relation to any reporting, filing or disclosure obligations which apply to you) prior to entering into this Agreement. You agree to keep such advice up to date by periodic review. You agree that it is your responsibility to obtain independent professional advice on the suitability of any structure which we administer on your behalf or any Service we provide to you or the Company.
6.2. We do not provide tax, investment, legal or financial advice and we do not accept any responsibility or liability for any loss or damage suffered by you or the Company as a result of you and/or the Company engaging us to provide Services to you, on your behalf, to the Company or to any other structure at your request.
6.3. You warrant and represent that you currently, and in the future will continue to, comply with all legal and taxation obligations applicable to you under the laws of the jurisdiction in which you are resident/domiciled or any other relevant jurisdiction including, without limitation, all reporting and filing obligations to any tax or governmental authority in relation to your interest in, ownership of or relationship with the Company or any structure we administer or provide services to at your request.
7. Information & Automatic Exchange of Information
7.1. You represent and warrant that the information contained in the Application Form and any other information that you have provided to us is accurate and complete and is not misleading in any way. You hereby confirm that you are acting solely as principal and not as agent for any other person.
7.2. You must, in advance, inform us immediately in writing of any proposed changes to the shareholding or to the ultimate beneficial ownership of the Company and of any changes or dealings in relation thereto (whether by transfer or grant of option or agreement to do so or otherwise). Such notification must take place before any change is made or agreed. We shall not be obliged to recognise any purported change in legal or beneficial ownership without being in receipt of proper notice in writing and receipt of all necessary due diligence to meet our legal or regulatory requirements and obligations.
7.3. You must also inform us immediately in writing of any changes to your details or your activities as given either in the course of application for business or at any subsequent date. This obligation relates to information including, but not limited to, any change of name, address or contact details, and if you are a company, a partnership, a trust or an unincorporated association, any material change in your constitution or equivalent or any change in the composition, identity or addresses of parties connected to your entity such as your officers, beneficial owners, controllers and beneficiaries as applicable, and to provide us with documentary evidence of the change on request.
7.4. The obligations in clause 7.2 and 7.3 are particularly important in view of the requirement under automatic exchange of information agreements which requires us to be aware of any change of circumstance which might impact on the information to be reported in relation to you and the Company.
7.5. Without prejudice to clauses 7.2 and 7.3 above, you and the Company agree to provide us, as soon as reasonably practicable following a request, with all information and/or documentation which we may reasonably require from time to time for the purposes of ensuring that we comply with Gibraltar Law or applicable law in any other relevant jurisdiction which requires us to establish, maintain or operate measures to prevent money laundering or the financing of terrorism (“Customer Due Diligence Information”).
7.6. You acknowledge and agree that upon the implementation into Gibraltar Law of automatic tax or other information exchange agreements between Gibraltar 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), we may be required to collect Reportable Information and to disclose Reportable Information to foreign tax or governmental authorities either directly or via the Gibraltar Government. Our obligation to obtain, disclose and exchange Reportable Information could extend beyond the ultimate beneficial owner of the Company to other relevant parties such as the directors, minority shareholders and persons who receive payments from the Company. The Company and you hereby agree to hold us and each Indemnified Person harmless in respect of any collection or disclosure of Reportable Information, including fully indemnifying us for any costs and expenses (including legal or other professional fees or expenses) incurred or sustained by us, howsoever arising, in connection with, or in relation to, any collection or disclosure of Reportable Information.
8. Rights of Third Parties, Entire Agreement & Variation
8.1. No person other than a party to this Agreement, their successors and permitted transferees or assigns, shall have any right to enforce any of its terms unless we expressly agree in writing to such third party rights.
8.2. This Agreement constitutes the entire agreement between the parties in relation to the provision of services to the Company and supersedes any and all prior agreements or understandings between the parties.
8.3. We reserve the right to amend the Agreement and our general terms and conditions of business in whole or in part, at any time without your, or the Company’s, prior consent. You agree that any amendment to our general terms and conditions of business on our website at http://www.fiduciarygroup.com (the “Site”) will be effective as of the date of the amendment by being posted on the Site and this shall constitute adequate and constructive notice to you of any changes. You are therefore responsible for regularly reviewing the Site and acknowledge that it is your sole responsibility to review our general terms and conditions of business from time to time. Your continued use of the Services following any amendment of our general terms and conditions of business on the Site will constitute binding acceptance of such modifications under the Agreement.
9. Anti-Bribery Policy
9.1. The Crimes Act 2011 (the “Act”) makes it an offence to give or receive a bribe. It is also an offence under the Act to bribe a foreign public official. The Act applies to all Gibraltar companies as well as to any subsidiary, joint venture, intermediary, introducer, agent, etc., of a Gibraltar company regardless of where they are in the world.
9.2. The implications of the Act for the Company, you and any person associated with you are that bribes must not be offered (even if they are not accepted), paid (be that in monetary terms or in any other form) or accepted (be that in monetary terms or in any other form). This applies regardless of the location in which the bribe is offered or received. To contravene the requirements of the Act is a criminal offence, the penalties for which include imprisonment and the payment of fines.
9.3. It should be noted that the Act extends to the prohibition of facilitation payments. These are often small payments made to expedite a process. Such a payment could be an offence under the Act.
9.4. If you or the Company becomes aware of any incidence of bribery directly or indirectly involving the Company, you must bring it to the attention of our Money Laundering Reporting Officer.
9.5. You confirm that you have read, understood, and agree to be bound by our anti-bribery policy which is available on our website/from your usual relationship manager. If you require any further information in relation to our anti-bribery policy, please contact the Money Laundering Reporting Officer in writing at Fiduciary Management Limited.
10.1. This Agreement may be terminated by you, the Company or us on giving 30 days written notice (or such shorter notice as the other parties may agree to accept) to the other parties whereupon, but subject to clause 10.2, this Agreement and the obligations of the parties (save in respect of antecedent breaches) cease and terminate.
10.2. Subject to clause 10.7, where this Agreement has been terminated by you or the Company under clause 10.1 above, the obligations of the parties shall not terminate unless and until the Company has been duly transferred to a suitable alternative service provider.
10.3. We shall be entitled (but not obliged) to terminate this Agreement with immediate effect by notice in writing in the event that:-
10.3.1.you or the Company commits any material breach of, or persistently breach, your obligations under this Agreement or under any other agreement between the parties and has failed to remedy such breach within a reasonable time, if such breach is capable of being remedied; or
10.3.2.you or the Company goes into liquidation (except for the purpose of a bona fide solvent amalgamation or re-organisation) or is declared bankrupt or a bankruptcy petition is presented against you or the Company or a receiver or administrator is appointed in respect of you or the Company, or anything analogous to any of the foregoing occurs in relation to you or the Company under the law of any jurisdiction; or
10.3.3. you or the Company suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 10 of the Gibraltar Insolvency Act 2011;
10.3.4. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up, provisional liquidation, liquidation, receivership or voluntary arrangement of you or the Company, other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or a solvent reconstruction;
10.3.5. you or the Company suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
10.3.6. we reasonably determine that the performance of this Agreement is or will in the future constitute, or is found by a court, the FSC or other competent authority to be a material or persistent breach of any applicable law or regulation, or that the performance of this Agreement has caused, or may in the future cause, damage to our reputation;
10.3.7. any legal proceedings are commenced against the Company (including any injunction or civil, criminal, tax, securities or other investigation or proceedings in any jurisdiction);
10.3.8. you or the Company fails to provide within a reasonable period of time all Customer Due Diligence Information reasonably requested by us;
10.3.9. any invoices raised by us remain unpaid 60 days after issue; or
10.3.10. you or the Company commits an offence under the Act or otherwise contravene our anti-bribery policy.
10.4. Termination shall be without prejudice to any rights or liabilities of any party either arising prior to, or after, termination.
10.5. In the event of termination, any applicable minimum annual charge levied by us will not be pro-rated or refunded.
10.6. Subject to clause 4.6, upon the effective termination of this Agreement, we shall deliver to the Company or to whom it may direct all books of account, correspondence and records relating to the affairs of the Company which are the property of the Company and which are in our possession. We shall be entitled to take copies if we so wish at the Company’s cost.
10.7. If you fail to appoint a suitable alternative service provider in respect of the Services we provide to the Company within 45 days after notice of termination is served under clause 10.1 or within 7 days of the termination taking effect if notice of termination is served under clauses 10.3.1- 10.3.10, we shall be entitled immediately thereafter to resign from all positions and to cease providing the Services notwithstanding that such resignation or cessation of Services may leave the Company without the requisite officers, registered agent, nominated officer, registered office and liable to be struck off. In the alternative in such circumstances, and subject to giving you 14 days’ notice in writing, we shall be entitled to commence the dissolution or winding up of the Company.
10.8. In the event of termination of this Agreement, we shall be entitled to transfer any shares held by us or any Group Company (e.g. a nominee shareholder) into the name of the person listed as beneficial owner in the relevant declaration of trust or similar document unless you have given lawful instructions to the contrary and complied with any applicable anti-money laundering or regulatory requirements within 14 days of termination in respect of a clause 10.1 termination or 7 days of termination in respect of a termination under clause 10.3.1 - 10.3.10.
10.9. In the event that, following termination of this Agreement, a suitable alternative service provider is not nominated by you and/or we are obliged by law to continue providing the Services, such provision of Services shall continue to be governed by the terms of this Agreement and each of you and the Company shall remain liable for the payment of Fees in accordance with this Agreement.
10.10. To the extent that Gibraltar Law requires a longer period of notice of resignation from any position than the period set out in this Agreement, that longer period shall apply to this Agreement.
10.11. For the purposes of this clause 10, a “suitable alternative service provider” shall mean a person licensed by the FSC or other relevant regulator to provide the relevant Services or any other person we deem suitable at our sole discretion (such as the Client, if considered appropriate).
10.12. For the avoidance of any doubt, we shall have no liability or duty to make any filing on behalf of the Company where you or the Company are in breach of this Agreement (including, without limitation, where there are invoices outstanding) notwithstanding that such non filing could cause the Company to fall out of good standing or be struck off by the Registrar of Companies and for its assets to vest bona vacantia.
11. Indemnity & Limitation on Liability
11.1. We shall not be liable (whether under the express or implied terms of this Agreement, or in negligence, or at common law or in any other way) for any loss, damage or expense howsoever suffered by you, the Company or any other person in connection with, or in relation to, the Services, or any act or omission of any Indemnified Person unless such loss, damage or expense arises from the gross negligence, wilful default or fraud of an Indemnified Person.
11.2. We shall not be liable for any loss, damage or expense howsoever suffered by you, the Company or any other person arising directly or indirectly from any act or default of any other person. For the avoidance of any doubt, but without limitation to the generality of the foregoing, we shall have no liability to you or any other person for any loss, damage or expense suffered by you, the Company or any other person which is caused directly or indirectly by the default, failure, collapse, insolvency, restructuring or any other act or omission of any third party contractor, bank, investment manager, agent, nominee, contract counterparty, issuer of any asset or investment held by the Company, financial advisor or other relevant party and whether the loss arises from a loss of funds, assets, title documents, change in legislation or otherwise.
11.3. We shall not be liable for any loss, damage or expense howsoever suffered by you, the Company or any other person as a result of any event outside our control (for example, but without limitation, an agent or third party failing to act on our or your instructions, interruption or delay in the performance of contractual obligations caused by strike, industrial action, systems failure or terrorism).
11.4. We shall not be liable for any loss, damage or expense howsoever suffered by you, the Company or any other person, where there is drop in value of any cryptocurrency or token or any other financial market.
11.5. We shall not be liable for any loss, damage or expense howsoever suffered by you, the Company or other person as a result of any statements made on any social media outlet or platform or any other forum.
11.6. We shall not be liable for any loss, damage or expense howsoever suffered by you, the Company or other person as a result of any statement made in any forum which implies that the Company is undertaking, or proposes to undertake, any activities which are potentially licensable or subject to regulation, in whatsoever jurisdiction, of which of which we have no knowledge.
11.7. Each of you and the Company hereby agrees to indemnify each Indemnified Person against all costs, expenses, Professional Fees, damages, claims, losses and liabilities howsoever incurred by any Indemnified Person, whether directly or indirectly, in relation to directly or indirectly:-
11.7.1. the Services; or your or the Company’s non- compliance with this Agreement; or
11.7.2. any civil or criminal enquiry, investigation, prosecution, regulatory action or similar action in any jurisdiction (whether or not proceedings have been commenced) into (a) the Client, (b) any Person Associated with the Client, (c) any Person Associated with the Company or (d) the Company, provided that such indemnity shall not cover any costs, expenses, damages, claims, losses or liabilities incurred solely as a result of our gross negligence, fraud or wilful default.
11.8 Notwithstanding clauses 11.1 to 11.4 of this Agreement, this Agreement does not purport to exclude our duty to you to act with skill, care and diligence (or any liability to you arising therefrom), nor does this Agreement purport to exclude our duty to comply with Gibraltar Law or any rules or directions made by the Gibraltar Financial Services Commission (or any liability to you arising therefrom).
11.9. You and the Company hereby irrevocably authorise us to deduct the amount of any indemnity granted in this Agreement whenever invoked from any funds we hold in your name or on your behalf or in the name of the Company or on its behalf.
11.10. For the avoidance of any doubt, we shall be entitled to instruct professionals and incur Professional Fees whenever we believe it is in our interests or the Company’s interests to do so.
11.11. Our maximum liability to you, the Company or any third party in respect of this Agreement, the Services and our relationship with you and the Company shall be limited to 3 (three) times the amount of the Fees in the preceding twelve (12) months. In the event that you wish to discuss a higher limit, please contact us.
12. Confidentiality, Records & Conflicts
12.1. We are committed to keeping your private information and the private information of the Company confidential. We may disclose such information only in the following circumstances:-
12.1.1. where we are compelled to do so by Gibraltar Law or any other relevant legal regulatory requirement or applicable law;
12.1.2. to comply with a court order;
12.1.3. where there is a duty to the public to disclose;
12.1.4. where our interests require disclosure;
12.1.5. where the Company’s interests require disclosure;
12.1.6. where the disclosure is made with your express or implied consent;
12.1.7. for fraud prevention or crime prevention purposes;
12.1.8. to sub-contractors or persons acting as our agents for the purposes of the provision of the Services; or
12.1.9. to Group Companies.
12.2. You hereby consent to us disclosing any of your or the Company’s information which we hold to a foreign governmental or prosecuting authority where, in our opinion, the interests of Fiduciary, any Group Company or the Company require disclosure. Unless we are prohibited from doing so by law, if we intend to make such a disclosure, we will give you at least 14 days advance notice in writing during which time you may object. We will consider your objection but shall not be bound by it. The Company and you hereby agree to hold us and each Indemnified Person harmless in respect of any disclosure of information by us in accordance with this Agreement. For the avoidance of any doubt, we shall not be liable to you or the Company or any other person for any loss, damage or expense incurred directly or indirectly as a result of such disclosure unless such loss, damage or expense was caused by our wilful default or fraud.
12.3. We will keep the records and documents (electronic and hard copy) belonging and relating to the Company for so long as we are required to do so under Gibraltar Law and in accordance with our internal document retention policy (as the same may be amended from time to time). We reserve the right to charge for retrieval, copying, couriers and administration time if we are requested to provide access to, or copies of, our files or the Company’s files.
12.4. From time to time, we may receive remuneration from a third party in connection with a transaction effected by us with or for you or the Company. Examples of remuneration include brokerage, commissions and referral fees. You and the Company hereby consent to us retaining such remuneration in full unless otherwise agreed in writing.
12.5. We aim to provide you with a fully satisfactory service at all times. If, at any time, you are dissatisfied with our service, we would ask you to contact us. We undertake to handle any complaints promptly and ensure that any appropriate remedial action is promptly taken, to the extent possible.
13. Data Protection Notice
13.1. You acknowledge that we are a data controller within the meaning of the Gibraltar Data Protection Act 2004 (or any modification or re-enactment thereof) and as such are required to comply with the relevant data protection legislation in all respects. We will process your personal data as necessary for the performance of our obligations under this Agreement, for compliance with our legal obligations, to pursue our legitimate interests or those of a third party (subject to any overriding interests, fundamental rights and freedoms as you may have) or, in limited circumstances, where you have given your consent.
13.2. Without prejudice to clause 12, we and our Group Companies may use your information for purposes including, but not necessarily limited to, administration, customer services, crime (including tax evasion) prevention and detection, anti-money laundering, due diligence, verification of identity, underwriting and statistical analysis.
13.3. We may disclose your information to any Authorised Persons, our Group Companies, service providers, agents, relevant custodians and investment managers and similar third parties for the purposes set out in clause 13.2 or for other lawful purposes. We may further disclose your information if you request the transfer of the Company to another service provider, in which case such transfer will be subject to your express consent.
13.4. We may keep your information for a reasonable period to comply with our legal and regulatory obligations, to protect your vital interests or those of another natural person to exercise our rights under this Agreement or to establish, exercise or defend any potential legal claims. After expiry of such period, we will only retain your information to contact you about our services or for other direct marketing purposes, subject always to your explicit consent.
13.5. To help us to prevent fraud, to check your identity and to prevent money laundering, we may search the files of credit reference, due diligence and similar agencies who may record any searches on your file.
In order to provide our Services under this Agreement, your personal data may need to be transferred to recipients in countries outside of the European Economic Area which may not provide an adequate level of protection of your fundamental rights and freedoms in the context of privacy and data protection of an equivalent standard to that in Gibraltar or the European Economic Area. In such cases, if we do need to make such a transfer, we will take appropriate steps as required by data protection to ensure that appropriate safeguards are in place, and that you retain and can enforce your rights and have effective legal remedies as a data subject. In the absence of such appropriate safeguards we will seek to rely on any applicable exemption offered under relevant data protection legislation and, where none applies, we may require your explicit consent to such a transfer.
13.6. When you give us information about another person, you confirm that they have appointed you to act for them, to consent to the processing of their personal data, including sensitive personal data and to the transfer of their information abroad and to receive on their behalf any data protection notices.
13.8. By signing this Agreement or proceeding to instruct us to provide the Services, you agree to the terms of this Data Protection Notice.
13.9. In accordance with the Gibraltar Data Protection Act 2004, you have a right to receive details of data which we may hold about you if you apply to us in writing addressed to: Privacy Team, Fiduciary Management Limited, Suite 23 Portland House, Glacis Road, Gibraltar, GX11 1AA, via email at firstname.lastname@example.org via telephone on (+350) 200 76651 or via fax on (+350) 200 41510. Subject to duties of confidentiality owed to other persons or in order to protect their fundamental rights and freedoms, we may not be able to comply (or may only comply partially) with your request. In certain limited cases, we reserve the right to charge an administrative fee in order to comply with your request.
13.10. You also have the right to complain to the GRA in its capacity as the Data Protection Commissioner by contacting the Gibraltar Regulatory Authority either in writing addressed to: Gibraltar Data Protection Commissioner, 2nd Floor, Eurotowers 4, 1 Europort Road, Gibraltar GX11 1AA, via email at email@example.com, via telephone on (+350) 200 74636 or via fax on (+350) 200 72166.
14. Assignment and Transfer
14.1. The terms of this Agreement shall be binding upon and endure for the benefit of the executors, administrators or successors of the parties but shall not be assignable in whole or in part by the Company or you without our prior written consent.
14.2. We shall be entitled to assign and transfer both our rights and obligations hereunder (whether as a result of a corporate reorganisation, a sale of our business or for any other reason) to any other party upon 30 days’ notice in writing to the Company and you. Each of you and the Company hereby irrevocably consents to our absolute right to assign and transfer as set out herein.
15. Governing Law & Jurisdiction
15.1. This Agreement is governed by, and to be construed in accordance with, the laws of Gibraltar.
15.2. Each of the parties hereby agrees to submit to the exclusive jurisdiction of the Gibraltar Courts in relation to any dispute regarding this Agreement, except to the extent that we may, in our sole discretion, invoke the jurisdiction of the courts of any other country.
16. Acceptance of the terms of this Agreement
16.1. By signing this Agreement, each of you and the Company hereby confirms that you have received, read, understood and agree to be bound by these general terms and conditions of business and the other terms of the Agreement.
16.2. In the event that you and/or the Company fail to sign this agreement but proceed to instruct us to provide any of the Services to the Company, you and the Company will be deemed to have accepted, and be bound by, these general terms and conditions of business and the other terms of the Agreement.