- PERFORMANCE OF SERVICES
1.1 Services. Amicorp will provide the Services as specified in the Agreement and these Terms of Business.
1.2 Compliance with Laws. Principal acknowledges, understands and agrees that Amicorp will manage the business, legal, corporate, fiduciary, administrative and tax affairs of the Entity, at all times, in compliance with (i) the applicable laws, regulations and decrees, including, without limitation, those related to business organization and the prevention of money laundering; (ii) the Entity’s articles of incorporation / articles of association / memorandum of association / deed / by-laws / operating agreement / partnership agreement; and (iii) any shareholders’ / members’ / partners’ resolutions. In any event, Amicorp will perform its duties and render the Services to the best of its ability and knowledge and in the best interest of the Entity.
1.3 Permissible Activities; No Conflict of Interest. Nothing herein or in the Agreement, shall in any way preclude Amicorp or its officers, employees, agents, representatives, members or affiliates from engaging in any business activities or from performing services for its or their own account or for the account of others, including (without limitation) the rendering of services to other companies that may be in competition with the business conducted by Principal or by the Entity. It is understood and agreed that such undertakings shall not create any conflicts of interest on Amicorp’s part.
1.4 Independent Advice. Principal irrevocably agrees that Amicorp will have the right to seek independent professional advice at Principal/Entity’s expense in case of any matters of complexity. Amicorp will inform Principal of Amicorp’s intent to exercise such right and the estimate costs involved. If no objection is received from Principal for a period of five (5) days (or within the stated period of time) of the date of notice, it will constitute acceptance. Amicorp shall neither be responsible for any acts (either by commission or omission) executed pursuant to the independent professional advice, nor for the accuracy or completeness of any such advice.
1.5 Duty of Good Faith. These Terms of Business impose upon Amicorp, Principal and Entity a duty of good faith and fair dealing in its performance and its enforcement. Amicorp, Principal and Entity shall perform their respective duties under the Agreement in a professional, commercial, and timely manner.
1.6 Tax and Legal Advice. Principal duly warrants that it/he/she has taken and will at all times ensure that it/he/she will take all necessary tax and legal advice with regard to the establishment and operations of the Entity serviced by Amicorp and that the activities or proposed activities of the Entity will not breach the laws or regulations of any relevant jurisdiction, sanctions imposed by any multilateral organization or any applicable treaty, directive, decree, law or regulation and acknowledges that Amicorp shall not be in any way responsible for advising Principal or the Entity.
Principal further agrees and acknowledges that Amicorp does not provide any tax, legal or investment advice and any advice given or reports prepared for Principal or Entity shall not be treated as tax or legal advice.
1.7 Delegation; Outsourcing. Amicorp will be entitled to subcontract, outsource, or delegate part of the obligations regarding the Services to any other Amicorp company or an outside service provider; however, Amicorp will remain liable for its obligations under the Agreement.
- FEES, EXPENSES AND PAYMENT
2.1 Fees. In consideration of the provision of the Services, Principal/Entity agrees to be liable jointly and severally for: (a) paying Amicorp or its designees the relevant invoices for the Services rendered, and (b) performing all other obligations and duties contained in these Terms of Business and in the Agreement.
2.2 Fee Adjustment. All or any fees payable by Principal and Entity for the Services rendered by Amicorp shall be as per the Agreement.
Amicorp is entitled, in its sole discretion by giving Principal and Entity a prior notice of thirty (30) calendar days, to adjust its hourly rates and annual fees for inflation purposes, changing market standards or conditions, or other special circumstances and the fees may be adjusted on an annual-calendar basis.
2.3 Expenses; Taxes. Any costs or expenses to be incurred in connection with the Services will be paid to Amicorp in advance. All collection costs, expenses and related bank charges including any legal fees shall be paid by the Principal and Entity. In the event that Amicorp is requested by Principal or any governmental regulation or body to produce documents or Amicorp’s personnel as witness or in any other capacity with respect to Principal’s or Entity’s activities, Amicorp shall be reimbursed for its professional time and expenses and for the professional counsels’ fees and expenses.
All fees, costs and expenses incurred by either party in connection with or arising pursuant to this Agreement shall be borne and paid by the party incurring such fees, costs and expenses including, without limitation, those of any broker, attorney, advisor, or consultant.
(a) Invoicing and Collection Agent. For the performance of the Services, Amicorp will charge Entity with the fees, disbursements, and taxes, by means of invoices. Amicorp may assign its rights to charge and raise its invoice to any affiliates of Amicorp. Amicorp will be entitled to demand payments before commencing the provision of any services requested, which estimate amounts will be detailed in pro-forma invoices. For disbursements, Amicorp will include a seven-percent (7%) charge to each invoice for mail, telephone, fax and general office expenses. Courier expenses and other third party expenses do not form part of the aforesaid seven (7%) charge and will be charged separately. Invoices are due and payable to Amicorp within thirty (30) calendar days of the date of the relevant invoice. Principal shall ensure that Entity’s bank account will have, at all times, a minimum credit balance of Five Thousand Euros (5,000 EUR) or its equivalent. Making punctual payment is of the essence of this Agreement.
For the purpose of invoicing for the Services rendered and/or the collection of fees owed, Amicorp will be entitled to appoint affiliates or a third party as its invoicing and/or collection service provider.
(b) Proof of Receipt. Amicorp will send a copy of any given invoice to Principal as per clause 15.3 (Notice), who will have the right to object to any material or significant items or amounts contained in the invoices within ten (10) calendar days of the date of successful transmission or receipt of the invoices
(c) Payment by Debit. Amicorp is hereby irrevocably authorised by Principal/Entity and, Amicorp will be lawfully entitled, to debit from Entity’s bank account the sums of money owed to Amicorp for the Services rendered, any late interest payment and any other charges.
The above clause shall be applicable only where Amicorp is acting in fiduciary capacity for the Entity.
(d) Late Interest Payment and Other Charges. If any payment is not made when due, Principal and Entity shall be in default by the mere lapse of time, without any further notice, and Amicorp will, as a result thereof, incur costs not contemplated in the relevant invoice then overdue. Any overdue amount shall bear interest compounded monthly, commencing thirty (30) days after the due date of the relevant invoice as established by these Terms of Business and/or the Agreement. Any payments required under the terms of these Terms of Business or the Agreement if not paid when due will accrue interest equal to ONE AND A HALF PERCENT (1.5%) PER MONTH on the aggregate amount of the payment due and owed to Amicorp until the date of payment in full satisfaction to Amicorp. In addition, Principal and Entity will pay any extrajudicial and judicial collection costs incurred in recovering these dues.
(e) No Waiver of Default. Acceptance of part payment or late interest payment and other charges by Amicorp shall in no event constitute a waiver of the default with respect to the overdue amount, and shall not prevent Amicorp from exercising any of the other rights and remedies available to Amicorp including, without limitation, the rights to suspend the provision of services or to terminate the contractual relation with Entity and Principal.
(f) Set-Off. All amounts due shall be paid in full without any deduction or withholding other than as required by law. Principal/Entity shall not be entitled to assert any credit, set-off or any counter-claim against Amicorp in order to justify withholding payment of any such amount in whole or in part.
(g) Withholding of documents. Amicorp is entitled to retain and withhold any and all documents and corporate records belonging to a Principal/Entity, until all amounts due to Amicorp have been fully settled by such Principal/Entity.
- DUE DILIGENCE SUPPORT
3.1 Due Diligence Reviews. Principal understands and acknowledges that:
(a) Amicorp is legally obligated to perform due diligence checks on Principal and Principal’s business organization, based on Customer Due Diligence (“CDD”) national and international laws, regulations, policies and guidelines;
(b) For such purposes, Amicorp uses its own strict CDD policies and guidelines;
(c) Such obligation involves continuing checks and entails requesting information and documents from Principal (as ultimate beneficial owner of the business structure referred to herein), on an ongoing basis;
(d) Based on the foregoing, Principal agrees that it will be its responsibility to provide Amicorp with any and all information and documents to discharge Amicorp’s CDD obligation, as requested by Amicorp; and
(e) Principal agrees that it will have the duty to immediately inform Amicorp in connection with any changes or inaccuracy regarding the CDD information and documents.
Amicorp is at any time, in its sole discretion, entitled to request references or additional information about Principal’s identity, about the business activities of Principal/Entity or about persons involved in a Principal’s/Entity’s business, and further to request any and all information as Amicorp deems necessary or appropriate.
3.2. Continuing Duty to Inform. Principal is obligated to immediately inform and provide Amicorp with any information and supporting documents of any changes to the information or documents supplied to Amicorp and, particularly without prejudice to the generality of the foregoing, of the occurrence of any of the following:
(a) Any changes in the beneficial ownership or control of the shares/interest of the Entity;
(b) Any pledge, transfer or assignment of any or all of the shares/interest of the Entity
(c) The commencement and any further steps in any proceedings (i) in relation to any assets of Principal/Entity, or (ii) for the winding up of Principal/Entity and/or the appointment of an administrator, trustee, and receiver to manage the affairs of Principal/Entity; or
(d) The levying of any execution, distress or diligence or any similar debt recovery process or claim against any material assets of the beneficial owner.
- DATA AND USE OF DATA
Principal and Entity understand, acknowledge, and agree that:
(a) any of Data Subjects’ information and documents are stored and kept as Amicorp deems necessary for its legal and business purposes and in no event will its lawful use be deemed as a violation of any legislation concerning protection of personal data. Principal and Entity hereby waive any cause of action or right to damages based on such use. Data Subjects’ personal data may be incorporated in Amicorp’s automated files and, upon the termination of the Agreement, Amicorp is hereby authorized to keep such personal data stored and to use these data if and to the extent that Amicorp is requested by law, regulations or any court order. The Data will be used for the purposes of communication with Principal and Entity, management of the relationship with Principal and Entity, performance of the Services and conducting compliance procedures imposed on Amicorp by applicable laws and regulations;
(b) Amicorp is entitled to process personal data of Data Subjects, as well as any Data, including without limitation to transmission of the Data to, from and within the Amicorp Group and to, from and within any sub-contractors, service providers and/or suppliers engaged by Amicorp for one or more of the below purposes, thereby allowing worldwide access to the Data to designated staff members of the Amicorp Group and/or such subcontractors, service providers and/or suppliers.
Principal consents to Amicorp collecting, using and/or disclosing its personal data for the purpose of performing its contractual obligations to any third parties, as well as such other purpose(s) reasonably and/or customarily required by a relation of such nature, and in that regard, Principal agrees to execute such written consents or documentation as may be required by Amicorp.
(c) Amicorp is entitled to collect, use and/or disclose such information of Data Subjects as is required for the purposes of complying with applicable laws, regulations, directions, international treaties or the equivalent, including without limitation, such requests pertaining to exchange of information for tax purposes or such bank and trust information of Data Subjects requested by any local or international authorities, court of law or regulatory bodies. Amicorp will, where possible, provide prior notice of the aforesaid disclosure unless otherwise prohibited under applicable laws or regulations.
(d) Principal and Entity hereby authorise and consent to the processing and transmission of the Data as per Clauses 4(a), (b) and (c). Principal represents and warrants that the consent of the Data Subjects for such processing and transmission of Data as per Clauses 4(a), (b) and (c) have been obtained in so far as such consent is required.
5.1 Requests and Instructions. Amicorp may act and rely upon written or electronic requests, instructions, notifications, instruments or documents of any kind (more fully specified under clause 15.3 on Notice), which appear to have been signed (in original or facsimile or scanned image), endorsed or prepared or sent by Principal/Entity provided Amicorp at its sole discretion has the right to verify or authenticate any such request, instruction, notification, instrument or document, but shall have no obligation to verify or authenticate any request, instruction, notification, instrument or document received via telephone, facsimile or electronic email and all actions thereof shall be conclusive and binding on the Principal.
For the protection of both Principal/authorised representative of Entity and Amicorp, as well as to avoid or to correct any misunderstanding, to improve services and in the interests of security, Amicorp has the right to, at its sole discretion and without prior notice, to record any telephonic conversation or any conversation by any other means of communication made with, or made on behalf of, Principal/Entity.
5.2 Electronic and Online Communications. For purposes of the supply of Services, each party agrees to the use of all means of electronic communications and assumes the risks associated with such use. Neither party shall be liable to the other party for any loss or damages caused by errors or viruses or by late or incomplete delivery, corruption, or destruction of information or documents. Amicorp may give Principal or Entity’s authorised representatives access to the Portal (on an “as-is basis) to enable Principal and its authorised persons to viewing electronic documents of Entity and to having direct live communication with Amicorp. Principal understands and acknowledges that Amicorp will provide Principal or Entity’s authorised representatives with a username and password to have access to the Portal and that Principal or Entity’s authorised representatives will be the sole responsible person for exercising such right of access, viewing, and communicating, in no event shall the password be disclosed to any unauthorised persons and Amicorp shall not be liable for any loss arising due to such misuse. Principal or Entity give their express consent to receive regular electronic marketing materials and email alerts. Amicorp makes no representations or warranties as to the availability of the Portal at any time in the future or as to the access to or the fitness of the Portal for the purposes set out herein.
- INTELLECTUAL PROPERTY RIGHTS
Principal and Entity irrevocably agree not to use any of Amicorp’s trade name or trademark (word or device) or any other intellectual property rights owned by or licensed to Amicorp.
7.1 Each party who receives confidential information (“Recipient”) undertakes that it shall not at any time during the term of the Agreement disclose to any person any confidential information concerning the business, affairs, customers, clients, suppliers or employees of the party who discloses confidential information (“Disclosing Party”).
7.2 Recipient may disclose the Disclosing Party’s confidential information: (i) to its employees, officers, group companies, representatives, agents, third party service providers, or advisers who need to know such information for the purposes of carrying out the Recipient’s obligations under the Agreement. Recipient shall ensure that its employees, officers, group companies, representatives, agents, third party service providers, or advisers to whom it discloses the other party’s confidential information comply with this provision; and (ii) as may be required by law, court order or any governmental or regulatory authority.
7.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
- REPRESENTATIONS; WARRANTIES; COVENANTS
8.1 Regarding the Entity. Principal warrants, and covenants to Amicorp that, at all times, Principal shall undertake the necessary actions and procedures to cause any person involved in the management of the shareholder(s) or member(s) or partner(s) of the Entity, the Entity, and its subsidiaries or affiliates (collectively referred to as “Associates”), to comply (as applicable) with the following:
(a) have the shares/interests fully paid up;
(b) serve at least 30 days’ written notice on Amicorp before consummating any sale, transfer, conveyance, assignment, charge, lien, pledge, encumbrance or any other disposal of any part or all of the shares/interests or any of the Entity’s assets;
(c) cause the Entity to pay all of its debts as and when such debts fall due;
(d) ensure and cause the Entity to have, at all times, sufficient cash funds in the Entity’s bank account to meet its business and financial obligations including, without limitation, Amicorp’s invoices regarding fees, time spent, costs, expenses, ordinary disbursements, and any and all of the Entity’s tax liabilities;
(e) refrain from doing or saying anything that might be detrimental to the reputation of Amicorp or which may lead any person to cease to deal with Amicorp;
(f) provide all information as required for the purpose of the Entity’s compliance with its statutory, legal or regulatory obligations; and
(g) perform such acts, execute and deliver such instruments and documents, and do all such other things as may be reasonably necessary for any purposes contemplated hereunder or in any other legal instruments regarding the services provided to the Entity.
8.2. Regarding Principal and Associates. Principal represents, warrants, and covenants that the following statements are and will remain at all times complete, true, and accurate regarding Principal, Entity’s shareholders/members/partners, Entity, and the Associates (for purposes of this provision only, each of these persons is collectively referred to as “They”):
(a) They are trustworthy and creditworthy individuals or entities;
(b) They have never been: (i) convicted of any offence; (ii) declared bankrupt; (iii) the subject of an investigation by a criminal agency or governmental or other regulatory (including professional associations) or statutory bodies; (iv) a director, shareholder or manager of a business entity, which has been subject to an investigation in connection with the foregoing, or which has been declared bankrupt, compulsorily dissolved or wound up or has made a settlement or debt arrangement with its creditors;
(c) They are not government officials or residents in or dealing with countries subject to the sanctions of the United Nations, United States of America or European Union;
(d) All acts required to be done by Amicorp will comply with all laws affecting or binding upon the Entity or Principal and all statements and documents which Principal requests Amicorp to sign will be complete, true, and accurate;
(e) Principal will provide complete, true, and accurate accounts or supporting documents that will allow Amicorp to cause Entity to have and keep proper accounts and to file accurate tax returns;
(f) They will disclose and have disclosed to Amicorp all the information relating to their condition (financial or otherwise), their business affairs, objects and their (future) actions or transactions, material for disclosure to Amicorp in connection with its (management) services and all other information which may be necessary in order for Amicorp to make any informed decision or take any appropriate course of action;
(g) They, as applicable, are not and will not be used for or engaged in offshore gambling or gaming, arms or sex related business or illegal, unethical or immoral activities such as money laundering and tax fraud;
(h) Principal is aware of his/her/its tax affairs and is responsible for the same and agrees and consents to Amicorp’s disclosure of any information related to Principal and/or Entity as may be requested by relevant authorities, laws or regulations;
(i) Any assets that shall accrue to the Entity are from lawful sources and are not deemed to be derived from any illegal or immoral activity either in their country of origin or in the country/countries of residence of the Principal or the jurisdiction where the Entity is set up, registered or managed;
(j) They comply with all relevant legislation in relation to the Services and shall obtain and maintain all necessary licences and consents.
- ANTI-MONEY LAUNDERING
Principal undertakes that it shall not engage in any illegal activities which means any activity designated anywhere in the world as illegal or criminal which, without prejudice to the generality of the foregoing, shall be deemed to include activities relating to terrorism, drug trafficking, money laundering, gambling, lotteries, pornography, receiving the proceeds of criminal activities or trading with countries which may from time to time be subject to embargo imposed by the Security Council of the United Nations, the European Union or any successor or similar international organization.
10.1 Indemnity by Principal and Entity. Principal and Entity will, during the applicability of these Terms of Business and thereafter, jointly and severally indemnify and hold Amicorp (including its directors, officers and employees) harmless from and against any and all claims in contract, tort or suits instituted by any third party, as well as from and against any liabilities, damages, charges, fines, taxes, costs and expenses sustained, incurred or expended, directly or indirectly, by Amicorp (including, without limitation, any fees, costs and expenses of attorneys, auditors and other experts engaged by Amicorp), arising out of or in connection with: (a) any Principal's breach or negligent performance or non-performance of these Terms of Business and the Agreement; (b) any claim made against Amicorp for actual or alleged infringement of a third party's intellectual property rights; (c) any claim made against Amicorp by a third party arising out of or in connection with the provision of the Services; (d) misunderstanding or transmission error or fraudulent instructions resulting of email, telephone, facsimile, including any mistake by Amicorp on the identity of the sender if a request or instruction from Principal/Entity is rendered to Amicorp by email, telephone or facsimile / Amicorp acting upon instructions received through telephone, telex, facsimile, email or any other means of communication irrespective of authentication; and (e) any claim made against Amicorp by a third party for death, personal injury or damage to property. This indemnity shall not cover Amicorp to the extent that a claim results from Amicorp’s gross negligence or wilful misconduct as determined by a final court judgment.
10.2. After-Tax Basis. If a payment due under this Section is subject to tax (whether by way of direct assessment or withholding at its source), Amicorp shall be entitled to receive from Principal/Entity such amounts as shall ensure that the net receipt, after tax, to Amicorp in respect of the payment is the same as it would have been were the payment not subject to tax.
11.1 Entire Financial Liability of Amicorp. This Section sets out the entire financial liability of Amicorp to Principal/Entity as its exclusive remedy in respect of: (a) any breach of these Terms of Business and the Agreement or statutory or fiduciary duties; and (b) any causes of action based on misrepresentation or tortious acts or omissions (including negligence), restitution or otherwise arising under or in connection with these Terms of Business and the Agreement. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN REPRESENT THE PARTIES’ INTENTION AS TO THE ALLOCATION OF RISKS HEREUNDER AND, THUS, ENTITY AGREES THAT THESE LIMITATIONS AND EXCLUSIONS ARE REASONABLE. AMICORP’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF ANY STATUTORY OR FIDUCIARY DUTIES, MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THESE TERMS OF BUSINESS AND THE AGREEMENT SHALL BE LIMITED TO THE FEES CHARGED BY AMICORP DURING THE YEAR IN WHICH THE BREACHING EVENT REFERRED TO IN THIS CLAUSE OCCURRED.
11.2 Limitation of Liability. Amicorp shall not be liable to Principal/Entity for any breach, loss, damage, claims, fines, charges, costs or expenses resulting from actions taken by Amicorp in discharging Amicorp’s duties, unless any of the foregoing is the result of and can be attributed to Amicorp’s gross negligence or wilful misconduct in the rendering of the Services, as determined in a final and enforceable judgment issued by a competent court. If any act or omission to act of Amicorp causes or results in loss or damage to Principal/Entity, it shall not constitute gross negligence or wilful misconduct on Amicorp’s part if done pursuant to a professional advisor’s opinion.
11.3 Exclusion of Liability. All terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms of Business and the Agreement. Except as expressly required by law without the possibility of contractual waiver, in no event will Amicorp be liable to Principal/Entity or third party for the following:
(a) any special or consequential, punitive, or incidental damages (including, without limitation, loss of profits, revenues or data), whether based on breach of contract, tort (including negligence or strict liability) or otherwise and regardless of the form of the legal action, even if Principal/Entity has been advised of the possibility of any such loss or damage;
(b) for any late payment of fines, penalties, costs or interests charged by any governmental agency to Principal/Entity due to Principal/Entity’s delayed transfers or insufficiently detailed wire transfer instructions or for foreign currency exchange losses incurred by Principal/Entity;
(c) for any action taken (or consequences thereof) by Amicorp based on any forged document where such action by Amicorp would have been reasonable had the document not been forged;
(d) in connection with a misunderstanding or transmission error or fraudulent instructions resulting of, including any action by Amicorp acting upon instructions received through telephone, telex, facsimile, email or any other means of communication irrespective of authentication. This non-liability includes any damages incurred in connection with the use of multimedia or cyber facilities, as well as any other commercially available communication facility.
- SUSPENSION AND TERMINATION
12.1 Suspension. Without prejudice to any other rights or remedies that Amicorp may have, Principal and Entity acknowledge and agree that Amicorp shall have the unilateral right to suspend the supply of Services (including any statutory obligations) arising automatically on Principal/Entity’s default to pay Amicorp’s invoices for more than thirty (30) days after the due date for payment.
12.2 Termination. Either party may terminate the Services or the rights granted under the Agreement at any time without any liability or obligation whatsoever upon ninety (90) days prior written notice to the other party. Furthermore, the Services and the Agreement may be terminated by any of the parties with immediate effect by written notice upon the occurrence of any of the following:
(i) If the other party breaches any provision of these Terms of Business, the Agreement and fails to cure such breach within forty (40) calendar days of written notice describing the occurrence of a breach hereof; or
(ii) In the event that the other party is subject of investigation by a regulator or governmental authority for involvement in any scandal of money laundering activity or is charged with any criminal offence or is involved in a controversial business, political, or moral situation; or
(iii) Principal or Entity does not comply with the laws or regulations of any applicable jurisdiction; or
(iv) In the event that (a) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (b) a substantial part of the other party’s property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency; or
(v) If the other party ceases to do business, or otherwise terminates its business operations;
(vi) In the event that Entity’s shareholders’ control or Entity’s control is acquired, directly or indirectly, in a single transaction or series of related transactions, or all or substantially all of the assets or business of any of the foregoing are to be acquired by any organization that is not affiliated with Principal, except as a result of an assignment permitted hereunder;
(vii) Amicorp is unable to contact Principal or its representative(s) for a period in excess of three (3) months; or
(viii) In the event of any change in nature of business of the Entity.
Amicorp (including its directors, officers and employees) will not be liable for any damages, charges, fines, taxes, costs and expenses sustained, incurred or expended by Entity, Principal or any third party in connection with its resignation, and any subsequent action or omission.
Amicorp is unconditionally and irrevocably authorized to convene a general meeting of shareholders/members/partners of the Entity and to vote on behalf of the Entity’s shareholders/members/partners in favor of Amicorp’s resignation and discharge for its previous management.
(a) Amounts Due; Right to Retain Documents. If the Agreement is terminated in accordance with this Clause or the relevant Article under the Agreement, the parties will assist each other in the transition period. Amicorp will continue to perform the Services subject to the terms and conditions as contemplated under the Agreement and these Terms of Business and, once all amounts due are paid to Amicorp in full, Amicorp will transfer Principal’s and Entity’s information and documents to any person designated in writing by Principal. Amicorp is hereby authorized to keep a copy of Principal’s and Entity’s records, which Amicorp will hold or use as permitted under the relevant Agreement and these Terms of Business, and commit itself to maintain such information confidential.
(b) Termination for Dissolution; Document Retention. All Entity’s records must be retained for a certain period of time as set forth by the applicable law. Amicorp will retain such Entity’s records for the minimum statutory period and is authorised to automatically destroy such records unless otherwise agreed with Principal/Entity.
(c) Notice to Government Agencies. On the termination of the supply of Services, Amicorp shall have the right to unilaterally serve notice on any government agency or authority (including the Registrar of Companies/Chamber of Commerce, tax authorities, regulatory authorities, Amicorp’s supervisory authority) and other relevant service providers (including banks) regarding the fact that Amicorp has ceased to supply Services to the Entity.
- GOVERNING LAW
These Terms of Business and the Agreement shall be governed by and construed and enforced in accordance with the laws of the jurisdiction as specified under the Agreement applicable to contracts made and to be performed therein, excluding any conflict-of-laws rule or principle that might refer the governance, interpretation or enforcement of these Terms of Business and the Agreement to the laws of another jurisdiction. References to applicable laws, statutes or statutory provisions shall be construed as references to those statutes or provisions as respectively amended or re-enacted or as their application is modified from time to time by other provisions (whether before or after the date hereof) and shall include any statutes or provisions of which they are re-enactments (whether with or without modification) and any orders, regulations, instruments or other subordinate legislation under the relevant statute or statutory provision applicable hereto.
- DISPUTE HANDLING; JURISDICTION
14.1 Dispute Handling; Jurisdiction. The parties shall endeavor to resolve any dispute, whether arising during the term or at any time thereafter which involves the validity, construction, meaning, performance, termination, or effect of these Terms of Business and the Agreement, or the rights or liabilities of the parties, promptly and in an amicable and professional manner by negotiations between the parties. Any dispute between the parties arising out of or resulting from these Terms of Business or the Agreement that is not resolved through negotiation within a period of sixty (60) days of the first written claim notice by the aggrieved party shall be settled exclusively by final and binding litigation. The proper venue for any and all disputes in any way relating to or arising under these Terms of Business and the Agreement shall be a court of competent jurisdiction in the city as mentioned under the Agreement. However, Amicorp may initiate legal proceedings against Principal regarding the terms agreed in any jurisdiction then corresponding to the domicile or residence of Principal. Each party hereto agrees that (i) a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law, and (ii) each of them waives to raise or file any pre-answer motion or legal defenses for purposes of delaying or of frustrating the enforcement of the judgment in any other jurisdictions.
14.2 Service of Process. Principal irrevocably appoints the Entity as its agent to receive on its behalf in the city and country specified in the Agreement service of any proceedings hereunder. Such service shall be deemed completed on delivery to such agent (whether or not it is forwarded to and received by each Principal) and shall be valid until such time as each Principal has received prior written notice that such agent has ceased to act as agent. If for any reason such agent ceases to be able to act as agent or no longer has an address in such jurisdiction, Principal shall forthwith appoint a substitute acceptable to Amicorp and deliver to Amicorp the new agent’s name and address within the jurisdiction stipulated in the Agreement.
15.1 Assignment and Novation. Principal and Entity may not assign and/or novate his/her/its rights and obligations under any agreement with Amicorp to any affiliated or third party without the prior written consent of Amicorp. Amicorp shall have the right to assign and/or novate its rights and obligations under any agreement to any Affiliates or third parties upon intimation of such assignment and/or novation to Principal/Entity.
15.2 Force Majeure. The obligations of any party will be suspended during any period of Force Majeure. For purposes of these Terms of Business or the Agreement, a “Force Majeure” shall mean a major cause beyond a Party’s reasonable control (and not involving any fault or negligence of the Party affected) including, without limitation, acts of God, acts of war, revolution, riots, civil commotion, acts of a public enemy, embargo, acts of government in its sovereign capacity, strikes, lockouts, boycotts, fire, earthquakes, floods or other natural disasters. In this regard, changes in business circumstances or business objectives shall not constitute a “Force Majeure.” In the event of the occurrence of any Force Majeure, the party claiming Force Majeure shall use reasonable efforts to mitigate the effects of Force Majeure in order to perform its obligations under these Terms of Business or the Agreement.
15.3 Notice. For the purposes of these Terms of Business, a notice, invoice or any other message shall be deemed to have been received at the following times: (i) if sent by courier: at the moment of delivery by the courier to the addressee; (ii) if sent by registered letter: on the date noted on the return receipt; and (iii) if sent by telegram, e-mail or facsimile: on the date of sending or successful facsimile transmission that is, the sender has a hard copy of a confirmation page evidencing that the facsimile was completed in full to the correct fax number) or the sender’s printed name on top of the electronic mail will be a sufficient signature. FAX COMMUNICATIONS AND FAX SIGNATURES, INCLUDING THOSE FOR THESE TERMS OF BUSINESS OR THE AGREEMENT, ARE FULLY BINDING ON THE PARTIES. Unless otherwise expressly indicated in this Agreement, all references to “days” shall mean calendar days.
15.4 No Partnership or Agency. Nothing in these Terms of Business and under the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
The place of business of Amicorp or any activities undertaken by Amicorp shall not be deemed to be an office, place of business or permanent establishment of Principal.
15.5 Third Party Right. The parties to the Agreement shall be Principal and/or Entity and Amicorp. A person who is not a party to the Agreement shall not have any rights arising from or in connection with it.
15.6 Entire Agreement. These Terms of Business are applicable to, and are an integral part of, the Agreement. If these Terms of Business deviate from the terms and conditions of the Agreement, the terms and conditions of the Agreement will supersede these Terms of Business.
15.7 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Agreement or these Terms of Business or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15.8 Severability. If a provisions of these Terms of Business or Agreement, is or becomes illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable or the parties shall negotiate in good faith with a view toward substituting therefor a suitable and equitable solution in order to carry out the intent and purpose of such invalid provision.
15.9 Variation. No variation or amendment to the Agreement shall be valid or effective unless in writing and signed by authorized representatives of each party hereto. Amicorp shall have the right to make any changes to these Terms of Business.
15.10 Headings; Definitions. Headings used herein are for convenience of reference only, and shall not affect the construction of, or be taken into consideration in interpreting, these Terms of Business and the Agreement. In these Terms of Business and the Agreement (including the recitals), all capitalized words and expressions shall be construed as having the meanings attributed to them as specified herein. References in these Terms of Business and the Agreement to recitals, sections, paragraphs and schedules are to sections and paragraphs in and recitals and schedules to these Terms of Business and the Agreement. The recitals, documents referred to herein, and schedules to these Terms of Business and the Agreement shall be deemed to form part of these Terms of Business and the Agreement.
15.11 Survival. The relevant rights and obligations of the Parties shall survive the termination of these Terms of Business or the Agreement including, without limitation, this provision and the provisions concerning compensation, termination, confidentiality, indemnification, liability, and general provisions (including governing law and jurisdiction).
15.12 Language. These Terms of Business or the Agreement is in the English language only. All notices and other communications to be made or given pursuant to these Terms of Business or the Agreement will be in the English language, except for those communications received from national or local authorities or professionals granted, issued or produced in countries where the English language is not their official language.
15.13 Announcements. No party shall make, or permit any person to make, any public announcement concerning these Terms of Business or the Agreement without prior written consent of the other parties (such consent not be unreasonably withheld or delayed) except as required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange) or by any court or other authority of competent jurisdiction.
Unless expressly waived in writing by the Amicorp these Terms of Business (these “Terms of Business”) will be deemed to be incorporated in all agreements/Letter of Engagement entered into, and applicable to all Services rendered by Amicorp. For specific business units, additional terms and conditions will apply and both these Terms of Business and the additional terms and conditions will be read in consonance with each other.
“Agreement” means an agreement made in relation to the provision of the Services by Amicorp in connection with the Entity.
“Affiliates” means an entity that controls, is controlled by or is under common control with Amicorp, either directly or indirectly through one or more other entities that control, are controlled by or are under common control with such party. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, through membership, by contract or otherwise.
“Amicorp” means the relevant Amicorp company/companies, foundation(s) or individual(s) employed by Amicorp, acting as service provider (either on its own behalf or as agent of other Amicorp’s affiliates) as defined in the Agreement.
“Amicorp Group” means Amicorp, its shareholder(s), subsidiaries or affiliates worldwide.
“Data” means the information of the Data Subjects, any personal data as defined under relevant law in which Entity is established, included in Know Your Client file or any other documents or databases which are disclosed to or received by Amicorp as part of the Agreement.
“Data Subjects” mean Principal (directors, officers and employees of Principal, in case Principal is an entity), Authorised Person as provided in the Agreement, the Entity, its directors, officers, affiliates or any service provider to Entity.
“Entity” means company/companies and/or partnership(s) and/or foundation(s) and/or cooperative(s)specified in the Agreement, the Proposal and Engagement Letter, or approval thereof by Principal, or Structure Chart which may be amended from time to time and in respect of which Amicorp provides the Services.
“Principal” means any individual or legal person having a direct or indirect beneficial interest in the Entity and/or as defined under the Agreement.
“Services” means services as defined and detailed out under the Agreement in connection with the Entity.