FIDUCIARY SERVICES - BUSINESS TERMS AND CONDITIONS

Transcription

1 FIDUCIARY SERVICES - BUSINESS TERMS AND CONDITIONS 1.0 Definitions Saffery Champness means Saffery Champness (Suisse) S.A. or any subsidiary company thereof providing fiduciary services to the Client pursuant to the Agreement. Subsidiary Company means any subsidiary company of Saffery Champness (Suisse) S.A. providing fiduciary services to the Client pursuant the Agreement. The Administrator see Saffery Champness The Agreement means the Saffery Champness Fiduciary Services Agreement entered with the Client including any trust deed, Family Foundation documentation or other services agreement or instrument, existing or otherwise. The Client means the entity, person or persons who enter a Fiduciary Services Agreement as defined below with Saffery Champness and who instruct or request Saffery Champness to provide the Fiduciary Services. Trust means the trust which the client has requested Saffery Champness to establish or provide services to and administer pursuant to the Fiduciary Services Agreement. Company means the company which the client has requested Saffery Champness to establish or provide services to and administer pursuant to the Fiduciary Services Agreement. Foundation means the foundation which the client has requested Saffery Champness to establish or provide services to and administer pursuant to the Fiduciary Services Agreement. the Entity see Trust Company or Foundation

2 the Fiduciary Services Agreement means the Saffery Champness Fiduciary Services Agreement entered with the Client including any trust deed, Family Foundation documentation or other services agreement or instrument, existing or otherwise. the Fiduciary Services means the management and administration or other services as described in the Fiduciary Services Agreement. 2.0 Terms and conditions 2.1 Provision of services The Administrator will provide the Fiduciary Services to the Client and or the Client s related Entity(ies). 2.2 Disclosure of information (a) The Administrator will not disclose any information relating to the Client or the Entity unless disclosure is essential in order to provide the Services or to comply with legal or regulatory requirements or the information is in the public domain. The Client acknowledges and agrees that the Administrator may communicate to its professional adviser, accountant or agent whose position makes it necessary to know the same. (b) For the purposes of any relevant data protection legislation, the Administrator may be considered to be a data controller in respect of any personal data supplied to it by, or in respect of the Client or related Entity. All such personal data will be treated in accordance with such legislation. The Client hereby consents to the Administrator processing or passing such personal data and any other information about the Entity to any other member of Saffery Champness and to third parties for the purposes of (i) providing the Services to the Entity (including liaising with any bank that may transact business with the Entity) and (ii) in response to a request for the disclosure of information upon the request of other authorities or competent courts. (c) The parties to the Fiduciary Services Agreement shall not do any act, matter or thing which would or might prejudice or bring into disrepute the business or reputation of the parties to the Fiduciary Services Agreement. In the event of the Agreement being terminated for whatever reason, the provisions of this Clause 2.2 (c) shall remain in full force and effect. 2.3 Communication - General The Administrator shall be entitled to act upon any instructions or recommendations received whether in writing, orally or in any other manner which it shall in its discretion decide to accept from the Client and/or those persons as set forth in the Fiduciary Services Agreement.

3 The Administrator shall not be liable for any loss or damage which may result from the Administrator acting on instructions from or purporting to be from the Client. The Administrator may request additional authentication procedures for fund transfers. In the event that there is more than one Client then the Administrator will act upon the instructions of any one Client unless the Clients have instructed the Administrator otherwise in writing. 2.4 Communication via nominated person or third party The Administrator may accept a mandate to act upon communications, including investment and income directions, expression of wishes and appointments relayed to the Administrator on the Client s or beneficiary s behalf by a duly appointed nominated person or third party or other authorised person. Such persons may be authorised by the Client to translate and relay, at the Entity s expense, communications given by the Client or beneficiary to the Administrator. Neither the Administrator nor any nominated party shall be responsible for an errors, omissions or delays in the translation, transmission or otherwise, nor be liable for acting in accordance with such mandated communications. 2.5 Investment Although the Administrator may from time to time be concerned with the process of investment of funds held by the Entity, neither the Administrator nor any member of Saffery Champness is authorised to provide investment advice of any nature. Any comments or views expressed by the Administrator or any member of or any of their respective officers or employees in connection with investments shall not be construed as investment advice. Neither the Administrator nor any member of Saffery Champness shall be considered to be the advisor or consultant of the Client or the structure or be deemed by virtue of its acts or omissions (unless agreed in writing with the Client) to have given the Entity investment advice of any nature in any jurisdiction in which the Client or the structure shall operate or conduct its business. The Administrator is empowered, without any Client direction, to appoint the Client or any other person the Administrator considers appropriate, as Investment Advisor(s) for the Entity. The Administrators may issue a Limited Power of Attorney to the Client/Investment Advisor to permit him/her or it to direct investments such as the purchase and sale of securities, but not withdrawals, over accounts owned by the Entity. Where the Client or an authorised third party may direct investments, the Client and/or third party, as the case may be, remains exclusively responsible and liable for any investment which he/she or it directs to obtain information on and assess any risk disclosures, terms, fees and commissions; as well as to judge investment suitability. The Administrator or any related party may acknowledge and confirm receipt of all risk disclosures and understanding of investment risks and account or investment terms, without further enquiry to the Client or authorised third party.

4 2.6 Professional advice The Administrator may take such professional advice of such nature as it thinks necessary, prudent or desirable at the expense of the Entity. The Administrator may take such steps, but not obliged to, which it may in its absolute discretion think fit for the protection or furtherance of the assets and/or the business of the Entity. 2.7 Funding The Administrator shall inform the Client to provide the Entity with adequate funds in order to ensure that at all times the Entity has sufficient funds to discharge all its obligations and liabilities as and when they fall due. The Client hereby authorises the Administrator to procure the payment of such sums out of the bank accounts of the Entity as and when such obligations and liabilities fall due. The Client shall guarantee the due discharge by the Entity of all its liabilities in connection with the Fiduciary Services provided and agrees that the Administrator may cease to provide the Fiduciary Services if at any time any such liabilities remain unpaid. 2.8 Remuneration The Administrator shall be remunerated by the Client in accordance with its standard fee tariff from time to time or by such other amounts as shall be agreed in writing between the Administrator and the Client. The Administrator shall be entitled to raise charges in accordance with its standard scale and at such times (whether quarterly, annually or otherwise) as it shall in its discretion think fit. 2.9 Liability and indemnity Saffery Champness shall act in good faith and exercise reasonable care and due diligence in the performance of its duties but it shall not be liable for any loss or damages which the Client, the structure or any Entity may suffer or incur unless such loss or damage results from the gross negligence or wilful misconduct of Saffery Champness or its directors, officers or employees. Where the Client communicates information, instructions or requests to the Administrator otherwise than in original written form all risks in relation to such communication shall be borne by the Client who hereby agrees to indemnify and hold the Administrator harmless in relation to the consequences of any and all actions and omissions of whatsoever nature made in connection with such communication Complaints The Administrator has a complaints procedure which can be obtained by contacting the Managing Director at the offices of the Administrator.

5 2.11 Rights to cease The Administrator and each other member of Saffery Champness shall be under no obligation to continue with the provision of Fiduciary Services and may take action to wind up the structure and utilise its assets in the payment of any un-discharged liabilities in the event that: (a) fees and disbursements have not been paid in full within three months of being rendered; or (b) the Administrator has requested advice, information or instructions from the Client which has not been received in a satisfactory form within a reasonable time of such request Independence The Administrator and each member of Saffery Champness shall remain free to enter into any other agreements for the provision of services or any other services to any other person, firm or company notwithstanding the fact that such other person, firm or company may or shall have competing or conflicting interests and shall not be liable to account to the structure or the Client for any profits or benefits made or derived from, or in connection with such other Agreements Warranty The Client represents and warrants to the Administrator and each of the other members of Saffery Champness that he/she or it is not acting as nominee or trustee for any other person and hereby undertakes to inform the Administrator immediately in writing should he/she or it at any time cease to be the beneficial owner(s) of the structure or any part of it Appointment of agents and delegates In the performance of its duties and in the exercise of its powers under the Agreement, the Administrator may appoint sub-administrators, nominees, agents or other delegates ( delegates ) to perform in whole or in part any of its duties or discretions hereunder (and may include in such appointments powers of sub delegation). Saffery Champness shall act in good faith and exercise reasonable care and due diligence in the appointment of any delegates but it shall not be liable for any loss or damages which the Client, the structure or any Entity may suffer or incur unless such loss or damage results from the gross negligence or wilful misconduct of such delegates Change of terms The Administrator may, from time to time, communicate to the Client any changes to the Terms and the standard fee schedule. In the absence of any objection by the Client within thirty (30) days of the communication, the new Terms and/or fee schedule are deemed to be approved by the Client.

6 2.16 Interpretation The decision of the Administrator in the interpretation of these terms and conditions and in the application, calculation, apportionment or payment of fees in accordance with its standard scale of charges, as determined from time to time, shall be final and binding on the Client Termination The Agreement constituted by these terms and conditions shall be terminated: (a) immediately upon the Administrator giving to the Client notice of termination in the event of the property of the Client or the Entity being declared en desastré/bankrupt or the Client or any Entity becoming insolvent or going into liquidation (other than a voluntary liquidation for the purpose of reconstruction or amalgamation upon terms previously approved in writing by the Administrator) or a receiver being appointed, or if some event having equivalent effect (b) immediately if the Client commits any material breach of the Agreement or these terms and conditions and (where such breach is capable of remedy) does not make good such breach within 30 days of service by the Administrator of notice requiring the remedy of such breach; (c) on the expiry of 30 days written notice given by the Administrator to the Client; or (d) on the expiry of 30 days written notice given by the Client to the Administrator. Notice shall be properly given to the Client if sent to such address, as the Client shall notify to Saffery Champness in writing as his or their usual correspondence address from time to time. Any contractual relationship between the Client or the Client s successors or legal representatives and Saffery Champness shall not terminate upon the Client s death, loss of legal capacity or the client being adjudicated absent, insolvent or bankrupt. The termination of the agreement constituted by these terms and conditions shall be without prejudice to any antecedent liability of the parties to such agreement. In particular, but without limitation, the Administrator shall be entitled to receive all fees, disbursements and other monies accrued due up to the date of termination, together with fees on a time spent basis in respect of the winding up and/or transferring of the affairs of any Entity or other arrangement Action on termination Subject to the Administrator s obligations pursuant to any applicable legislation, following termination of the agreement constituted by these terms and conditions: (a) the Administrator shall deliver to the Client the permanent records pertaining to the business and affairs of the Entity in the possession of the Administrator provided that the Administrator shall not be required to make delivery of such books and records until full payment has been made to the Administrator for all fees, disbursements and expenses due to it under the agreement constituted by these terms and conditions (including any cost associated with the termination of such agreement and the delivery of such books and records:

7 (b) any directors and/or other officers provided by the Administrator as part of the provision of the Services may resign and any shareholders provided to the Entity by the Administrator or any other member of Saffery Champness may transfer their shares into the sole name of the Client whereupon neither the Administrator nor any other member of Saffery Champness nor any such director or shareholder shall be under any further obligation to provide any of the Services to the Entity or to maintain the Entity in good standing: and (c) the Administrator may notify the registrar of companies and any other registry or person on behalf of the Company that the registered office and the business address of the Entity is no longer located at the offices of the Administrator Governing law The relationship between Saffery Champness and the Client, these terms and conditions and the provision of Fiduciary Services as provided for under the Fiduciary Services Agreement shall be governed and construed exclusively in accordance with Swiss Law. The parties hereto submit to the non-exclusive jurisdiction of the Courts of Geneva, Switzerland Conflict In the event of any conflict between the terms of the trust and these Terms and Conditions, then the terms of the Trust shall prevail.