Terms and Conditions of Business
The following Terms and Conditions of business will be deemed to take effect on the earlier of the date of receipt by the Client or by its acceptance of any of the Services provided by Vivat. The client may inspect a current copy of the Terms and Conditions on the Vivat website www.vivattrust.com or at the registered office of Vivat during normal business hours during the Business Day.
1. Definitions and Interpretation
1.1 In these Terms and Conditions:
“Appointee” means all persons provided by Vivat to act as a chairman, director, secretary, nominees, trustee, manager, signatory, shareholder or any other officer of the Entity;
“Business Day” means a day on which Vivat is ordinarily open to carry on trust company business;
“Client” means any person to whom Vivat provides the Services. In the case of a body corporate, such reference shall include its successors and assigns. In the case of an individual, such reference shall include his heirs, personal representatives and assigns and;
“Entity” means any body corporate, foundation, partnership, trust, association or other person or entity;
“Employee” means any director, officer or other individual working for Vivat and/or providing Services;
“FSC” means the Jersey Financial Services Commission;
“Person” means any entity;
“Schedule of Charges” means the schedule of charges issued from time to time by Vivat for the Services;
“Services” means all and any services carried out or performed for or on behalf of, or in connection with, any Entity by Vivat or any Appointee or Employee; and
“Terms and Conditions” means these terms and conditions of business as amended.
“Vivat” means Vivat Trust & Corporate Services Limited, its subsidiary companies and the related entities of each and any of them that provide the Services to the Client;
1.2 In these Terms and Conditions, unless the context otherwise requires:
(i) Words importing the singular shall include the plural and the masculine gender shall include the feminine and the neuter and vice versa in each case.
(ii) References to statutes, the FSC codes of practice and any other rules, regulations or laws shall be to such statutes, rules, regulations and laws as modified, amended, restated or replaced from time to time.
(iii) References to clauses are to the clauses of these Terms and conditions.
(iv) Headings are included for convenience only and shall not affect the interpretation hereof.
2. Fees and Commissions
2.1 Vivat shall be entitled to receive fees in accordance with the Schedule of Charges, commissions or other remuneration (including retrocession) obtained under any banking or investment advisory or any other arrangements entered into on behalf of the Client or Entity, and to be reimbursed for all disbursements and expenses incurred in providing the Services.
2.2 The Client shall ensure that the Entity shall maintain a minimum cash balance of not less than £3,000 and sufficient to allow it to meet in full all fees, remuneration, disbursements, taxes and expenses payable by the Entity under the Terms and Conditions.
2.3 Vivat shall be entitled to deduct any unpaid monies owing to it as a result of, or in connection with, the Services from the assets of the Entity or to liquidate the assets of the Entity in order to recover unpaid monies without consent of the Client.
2.4 All monies payable to Vivat in connection with the Services shall be paid within 30 days of the issue of the relevant invoice and interest at the rate of 5% above the base rate of the Bank of England may be charged on all overdue amounts.
2.5 Where Vivat and the Client enter into a bespoke agreement relating to the Services and where any conflict exists, the terms of the agreement shall prevail. Any such agreement shall be subject to an annual review.
3. Lien
3.1 In the event of a failure to pay any part of Vivat’s fees, expenses, disbursements which Vivat is liable to pay on behalf of the Entity, Vivat shall have a lien over and a right not to release from its possession or control all or any assets or documents belonging in whole or in part or otherwise connected to the Client including assets or documents held on behalf of, connected or affiliated with the Entity or to the order of the Entity until such fees, expenses liabilities and disbursements have been discharged in full together with any interest due thereon.
3.2 This lien shall apply to all documentation and assets whatsoever held by Vivat in relation to the Services for which the fees, expenses, disbursements or liability have been incurred.
4. Services
4.1 Vivat will provide the Client with trust company business and related services as agreed between the Client and Vivat comprising:
(i) The administration of the Entity by Vivat or any Appointee or Employee.
(ii) Such other services as the Client and Vivat may agree.
4.2 The Services are subject to all applicable laws, regulations, rules, requirements, practices and guidelines in any jurisdiction.
4.3 The Client acknowledges that it is responsible for obtaining advice including (but not limited to) legal, accounting, tax and investment.
4.4 Without prejudice to 4.3, Vivat is authorised by the Client to do anything which is reasonably necessary either to carry out the Services or to comply with any applicable regulations.
5. Instructions
5.1 Vivat may act on written, faxed, emailed or oral requests or instructions from the Client or any person that it reasonably believes to be duly authorised to give such instructions.
5.2 Vivat may, where reasonable, refuse to act upon communications and shall not be held liable for the consequences of any such refusal.
5.3 Where Vivat receives a demand from a third party and Vivat is unable to secure a client’s reaction to such demands or Vivat considers that the client’s reaction is or may be contrary to the interests of the Client, the Entity or Vivat, than it may take such action as it considers fit including the taking of professional advice or the payment of the sum involved and Vivat shall not be liable for the consequences of any action or inaction on its part in these or similar circumstances.
5.4 Where Vivat does not believe that the person giving instructions is duly authorised or where the instructions are unclear, incomplete, ambiguous, contains errors or are contradictory it may refuse to act upon the instructions.
6. Client’s Undertakings
6.1 The Client hereby undertakes that:
(i) It will disclose or arrange for the disclosure to Vivat of all information relating to an entity, its assets or its business which Vivat asks for or which reasonably would be of interest to Vivat in the fulfilment of its duties under the Terms and Conditions or under Law.
(ii) All assets introduced to the Entity have been lawfully gained and lawfully introduced and are not derived from or otherwise connected with any illegal activity.
(iii) It has taken appropriate tax, legal and other advice with regard to the creation, administration and termination of the Entity with which it is involved.
(iv) It shall ensure that the Entity complies with all the filing requirements to which it is subject in any relevant jurisdiction and that all taxes and government levies payable by it are discharged.
(v) The Entity will not be directly or indirectly connected with any unlawful activity or used for any unlawful purposes.
(vi)The Entity will not engage in any business activity which requires a licence, approval or permission of any authority, in any jurisdiction, without first obtaining such licence, approval or permission.
(vii) The Client shall notify Vivat of:
a. Any actual, threatened or impending litigation, investigation, or prosecution that is relevant to the activities of the Entity or otherwise may impact upon the provision of Services to the Entity by Vivat.
b. Any act evidencing the insolvency of the Client, or actions to liquidate wind up or dissolve of Entities under its control.
c. Any event or activity which could be foreseen to have a material effect on the Entity or its assets.
7. Conflicts
If Vivat becomes aware of a possible conflict of interest, the Client shall be notified and Vivat shall use its reasonable endeavours to put in place a procedure to ensure confidentiality and to provide impartial Services.
8. Disclosure
8.1 Vivat is required as matter of law to operate anti money laundering systems in respect of the provision of its services. The Client accepts Vivat has such responsibilities and agrees promptly to provide such information and other assistance as Vivat may from time to time request in this regard. Vivat reserves the right to conduct reviews of the information held and to update the same. Any failure to provide such assistance as Vivat reasonable requests to enable it to fulfil its anti money laundering obligations may result in the immediate suspension of the provision of the service and Vivat accepts no responsibility for any consequences arising from this.
8.2 Vivat can be required to disclose information to third parties and the provision of that information will be deemed to be made on the basis that such disclosure is authorised by the Client.
8.3 The client also acknowledges that Vivat may be required to give evidence and information to persons in authority whether in Jersey or abroad in connection with the affairs of the Client or Entity. Vivat may seek legal advice with regard to its obligations is authorised to make a disclosure even if not clearly legally required to do so where failing so to do could be prejudicial to Vivat.
9. Data Protection
Vivat is bound by the requirements of applicable data protection legislation and will ensure compliance with that legislation for the purposes of providing the Services.
10. Intellectual Property
Vivat retains all intellectual property rights to the fullest extent possible by law in correspondence files, records, software Know How documents and their contents prepared by it in performing the Services.
11. Client Account
11.1 Money paid to Vivat belonging to the Client or the Entity will be maintained separately from the funds of Vivat.
11.2 Where tax must be deducted from interest earned on monies held on behalf of the Entity or paid out to the Entity the Client will account to the tax authorities for tax deducted.
12. Liability
12.1 Vivat shall not have any liability (whether direct or indirect and whether arising in contract, tort, equity or otherwise) to the Client for or in connection with the Services except to the extent that it has arisen from our wilful default or gross negligence and no claim will be made by the Client in respect of any Services, except as a result of our wilful default or gross negligence aforesaid.
12.2 The Client acknowledges that all transfers and transmissions of monies, assets or documents are made at their own risk or at the risk of the Entity and Vivat shall not be liable for any loss, damage or delays howsoever caused which is not directly caused by its gross negligence.
13. Indemnity
13.1 The Client undertakes with Vivat that:
(i) It will on demand indemnify any member of Vivat, Appointee or Employee (each, an 'Indemnified Person') to the greatest extent permitted by law, against any and all taxes, actions, claims, losses, liabilities, damages and costs, charges and expenses whatsoever that may arise from the provision of the Services other than liabilities accrued by acts of fraud, wilful default or gross negligence;
(ii) This indemnity shall be in addition to any rights that Vivat or any other Indemnified Person may have at common law or otherwise; and
(iii) This clause shall survive any termination of the arrangements contained in these Terms and Conditions.
14 Termination
14.1 Vivat shall be entitled to terminate, and the Client shall be entitled to terminate our engagement for, the provision of Services by us by giving at least 3 months notice in writing to the other party, on the expiry of which Vivat shall be entitled to receive full payment in accordance with clause 2 and shall have no responsibility to provide any further Services.
14.2 All and any obligation to provide the Services shall terminate with immediate effect upon Vivat giving notice in writing to the Client that:
(i) the Client has breached any of the Terms and Conditions; or
(ii) the Client has gone into liquidation, is declared bankrupt, has a receiver appointed or cannot meet its payment obligations under the Terms and Conditions; or
(iii) the Client or the Entity is or may become subject of any legal proceedings that may bring the reputation or standing of Vivat into disrepute.
14.3 Termination will not affect any legal rights which may already have accrued to or been incurred by Vivat.
14.4 Upon termination, Vivat, the Appointees and the Employees shall be entitled to make such retentions and receive such indemnities as it may require in respect of any actual or contingent liability and may take such action as it deems necessary to limit such liability.
15. Joint and Several Liability
Where the Client is more than one person all obligations of the Client in connection with the Services shall be joint and several.
16. Force majeure
In any event of any failure, interruption or delay in the performance of Vivat’s obligations resulting from acts, events or circumstances not reasonably within its control, including but not limited to industrial disputes, acts or regulations of any governmental or supranational bodies or authorities and breakdown, failure or malfunction of any telecommunications or computer services, Vivat shall not be liable or have any responsibility of any kind for any loss or damage thereby incurred or suffered by the Client or the Entity.
17. Amendments
17.1 Any amendment to the Terms and Conditions may be made without the prior consent of the Client.
17.2 Vivat will use its reasonable endeavours to notify the Client by publishing the amended Terms and Conditions on their website or by ordinary post, fax or e-mail of any changes which Vivat considers to be material as soon as is reasonably practicable after their introduction.
17.3 The Client shall be bound by any revision of the Terms and Conditions or the Schedule of Charges immediately upon a copy of the revised document becoming available for inspection at the registered office of Vivat.
18. Severance
If any part, term or provision of the Terms and Condition is or becomes or is declared by any court or competent authority to be void, illegal or unenforceable, it will be deemed to be deleted and the remaining provisions will continue in full force and effect.
19. Waiver
Waivers of rights under these Terms and Conditions will only be effective if given in writing. Failure to exercise rights in full or at all shall not constitute waiver. A person who is not a party to these Terms and Condition may not enforce any of its terms.
20. Notices
20.1 Any notice required to be given under this agreement shall be in writing and transmitted to the addressee at its physical or electronic address from time to time notified to the other party or failing which its last known address.
20.2 A notice delivered personally shall be deemed to have been given at the time of such delivery.
20.3 A notice sent by normal post shall be deemed to have been given three days after posting.
20.4 A notice sent by Air Mail post shall be deemed to have been given seven days after posting.
20.5 A notice sent by facsimile or email shall be deemed to have been given 1 hour after the recorded time of despatch.
21. Governing Law and Jurisdiction
These Terms and Condition shall be governed by and construed in accordance with Jersey law and the Client irrevocably submits to the non-exclusive jurisdiction of the Jersey courts.
14/05/2009