General Terms and Conditions

These general terms and conditions (hereinafter referred to as “Terms”) shall govern the provision of any and all services (hereinafter referred to as the “Services”) by Atoz Fund Services, a Luxembourg société anonyme, having its registered office at 1A, Heienhaff, L-1736 Senningerberg, registered with the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés) under number B 154626 (hereinafter referred to as the “Provider”) to its clients (hereinafter referred to as the “Client”).

By using the Provider’s Services, the Client agrees to these Terms.

 

1. DEFINITIONS AND INTERPRETATION

1.1. Definitions. In these Terms, including the Annex:

“2002 Law” means the Luxembourg law of 19 December 2002 on the Luxembourg Trade and Companies Register and on the annual accounts of the companies, as amended.

Agreement” means any written agreement (including its exhibits as amended, varied, and supplemented from time to time) entered into between the Client and the Provider regarding the performance of Services to be provided to the Client by the Provider at the request of the Client.

Authorised Person” means any member of the board or any other individual, including but not limited to managers, directors, officers, or employees of the Client, whom the Provider may, in the absence of written notice to the contrary from the Client, reasonably believe to be duly authorized to act on behalf of the Client.

Affiliate” means, with respect to any specified person, a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such specified person. As used in this definition, “control” means the power to direct the management or policies of a person, directly or indirectly, whether through the holding of Securities, by contract or otherwise.

Client” means the entity in relation to which Services will be or are being provided by the Provider, and which is defined in the Agreement.

Companies Law” means the Luxembourg law of 10 August 1915 on commercial companies, as amended.

Constitutional Documents” means constitutional documents of the Client, being the articles of association, management regulations and/or limited partnership agreement, as applicable, as amended from time to time.

CSSF” means the Luxembourg Financial Supervisory Authority (“the Commission de Surveillance du Secteur Financier”).

EEA” means the European Economic Area.

EU” means the European Union.

Fees” means the Fixed Fee, the Time Spent Fee and the Responsibility Fee.

Financial Sector Law” means the Luxembourg law of 5 April 1993 on the financial sector, as amended.

Fixed Fee” means a defined recurring lumpsum amount due by the Client on an annual basis for the performance of the Services, as provided in the Agreement.

Force Majeure” means any compelling and unforeseeable circumstance or event which (i) hinders, delays or prevents a Party from performing any of its obligations, (ii) is beyond the reasonable control of such Party and occurs without its fault or negligence, and (iii) cannot be prevented or mitigated by the exercise of reasonable diligence by that Party.

Intellectual Property Rights” means all intellectual rights including, without limitation, rights in registered and unregistered trade marks (including logos), rights in registered and unregistered designs, utility models, trade or business names, domain names, know-how, methods, techniques, processes and skills, and adaptations thereof, database rights, and copyright and authors’ right (including moral rights), or other intellectual or commercial rights (including applications for registration of any of the foregoing, and the right to apply therefore, in each case in any part of the world).

Laws” mean the Companies Law, the Financial Sector Law and the 2002 Law.

Proper Instruction” means, unless otherwise specified in writing by an Authorised Person, any demand or request which is, or reasonably appears to be, given by an Authorised Person in the following manner (i) orally during face-to-face meeting; (ii) orally by telephone to the extend promptly confirmed in writing; (iii) in writing, by letter or e-mail or any other means of electronic communication system.

“Responsibility Fee” means a fee due by the Client in relation of the Provider making available individual(s) to accept a mandate in the Client entity. In addition to the Responsibility Fee, the Client can occur Fixed Fees or Time Spent Fees for the work associated with the mandate, as provided in the Agreement.

Serious Misconduct” means each of the following: (i) non-compliance by either Party with its legal and/or regulatory and/or statutory obligations; (ii) material breach by either Party of any of its obligations under the Agreement and, if such breach is capable of remedy, failure within thirty (30) calendar days of receipt of a notice served by the other Party requiring it to remedy such situation; (iii) failure by the Client to pay invoices and/or reimburse expenses; (iv) change of the object of the Client and/or of the composition of the shareholders and/or of the corporate bodies and/or of the beneficial owners without prior written notification by the Client to the Provider; and (v) failure by the Client to inform the Provider of the existence of any litigation, conflict, investigation by any judicial or regulatory authority or other proceedings, actual or potential, in which the Client is or could be involved, directly or indirectly, in any jurisdiction; and (vi) action by the Client that may compromise the financial stability, independence, or reputation of the Provider, its Affiliates, partners, directors, or employees.

Services” mean any services to be provided to the Client by the Provider as contemplated in the Agreement.

Time Spent Fee” means a fee due by the Client on a time spent basis at the agreed upon time hourly rate, as provided in the Agreement.

 

1.2. Interpretation

1.2.1. The Client and the Provider are hereafter referred to as the “Parties” and each individually as a “Party”;

1.2.2. A “Clause” or an “Annex” is a reference to a clause or an annex of these Terms ;

1.2.3. The Annex of these Terms form an integral part of these Terms and will have the same force and effect as when set out in the body of these Terms. References to these Terms include the Annex;

1.2.4. The headings of the Clauses of these Terms and/or of the Agreement are for convenience only and shall not be binding;

1.2.5. Unless otherwise specified or the context otherwise requires, a reference to any provision of an EU legislative instrument must also be read as a reference to the applicable provision of the Luxembourg national law transposing such a provision;

1.2.6. Unless otherwise specified or the context otherwise requires, references to any provisions of legislation, delegated legislation, regulations, guidelines, circulars or rules of any other nature shall be construed as references to such provisions as replaced, re-enacted, extended or amended from time to time;

1.2.7. Words in the singular include the plural and vice versa, and a gender includes all genders and neutral. The words “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the meaning of the words preceding those terms;

1.2.8. Any Clause must be read and interpreted so as to comply with applicable Luxembourg laws relating to professional secrecy and confidentiality;

1.2.9. Unless otherwise specified or the context otherwise requires, a reference to a person shall be construed so as to include any individual, firm, company, joint venture, association, partnership (whether or not having separate legal personality) or other entity and that person’s successors in title and permitted assigns;

1.2.10. Any words in capital letters not defined in these Terms are defined in the Agreement.

 

2. SCOPE OF THE TERMS

2.1. These Terms shall exclusively apply to and govern any Agreement pertaining to the provision of Services by the Provider to the Client.

2.2. The execution of any Agreement by the Client shall constitute such Client’s unreserved adherence to these Terms.

2.3. Specific Terms pertaining to a Service shall be delineated in the corresponding Agreement. In the event of any discrepancy between a provision of these Terms and any provisions contained in the Agreement, the provisions of the Agreement shall prevail.

 

3. PROVISION OF THE SERVICES AND OBLIGATIONS OF THE PROVIDER

3.1. Provision of the Services

3.1.1. The scope of the Services to be performed by the Provider shall be strictly limited to those outlined in the Agreement.

3.1.2. The Provider is supplying the Services in respect of Luxembourg law and, unless otherwise stated in writing, has no obligation to ensure that the Services have been carried out in compliance with foreign law.

3.1.3. The Provider may seek external advice or assistance and/or delegate, in whole or in part, the performance of the Services as it deems necessary.

3.1.4. The fact that the Provider executes or refuses to execute an instruction given by the Client must never be considered or interpreted as an opinion given by the Provider on the legality, suitability or appropriateness of such actions.

3.1.5. The Client agrees that the Provider is not responsible for the rendering of investment, commercial, accounting, legal, data protection or any other advice whatsoever to the Client or any other person. The Services will not in any circumstance include providing, obtaining or reviewing on the Client’s behalf any legal, tax, commercial, financial, auditing, brokerage, actuarial, banking, investment management, information technology, technical or insurance services.

3.1.6. The provision of any Services by the Provider is contingent upon the Client's compliance with the obligations set forth in Clauses 4 and 5 of these Terms. 

3.2. Obligations of the Provider

3.2.1. The Provider undertakes to exercise reasonable skill, care and diligence in the performance of the Services (“obligation de moyens”). Under no circumstances shall the Provider be held to an obligation of result (“obligation de résultat”).

3.2.2. The Provider shall perform its duties and obligations with the level of skill, care, and diligence reasonably expected of a Luxembourg administrative agent providing services identical or substantially similar to the Services, for a Luxembourg entity comparable to the Client.

3.2.3. The Provider shall act honestly, fairly, professionally, independently and in the best interests of the Client.

3.2.4. The Provider shall ensure that the Services are carried out by a sufficient number of appropriately qualified and experienced staff, who devote a sufficient portion of their time and attention to ensure the proper performance of such obligations.

3.2.5. The Provider reserves the right to change the composition of the team responsible for delivering the Services.

3.2.6. The Provider shall keep with care the documents of the Client, as and when instructed or required by applicable laws or the Agreement. The Provider is authorized to store all books, registers, contracts or other documents belonging to the Client in either paper or electronic form. The Provider shall not be held liable for any loss or deterioration, whether partial or total, resulting from an instance of Force Majeure, theft, fire, flood, explosion or similar events.

3.2.7. The Provider undertakes to maintain a business continuity and disaster recovery (“BCDR”) plan and provide, upon request, following a reasonable prior notification, and not more than once per year, a copy of the BCDR plan to the Client.

 

4. PREVENTION OF MONEY LAUNDERING, TERRORIST FINANCING AND OTHER CRIMINAL OFFENSES

4.1. The Client acknowledges that the Provider is subject to Luxembourg laws and regulations aimed at preventing money laundering and the financing of terrorism, including the law of 12 November 2004 on the fight against money laundering and terrorist financing, as amended (“AML Law”). These laws and regulations are designed to prevent the misuse of the financial system for illegal activities. Consequently, the Provider has implemented specific risk-based precautions to ensure transparency and to conduct ongoing monitoring of its business relationships with clients and their financial transactions. This includes the obligation to identify the Client, any person acting on the Client’s behalf, and any beneficial owner(s) (if applicable), as well as to conduct necessary screenings of any financial transactions before providing any Services.

4.2. The Provider is therefore, prior to the entry into a business relationship or the execution of a financial transaction, as applicable, entitled to request that the Client, its directors and/or management provide the Provider with any document and/or information necessary for the Provider to document their identity and activity in order to be able to form its own opinion. In the event of any change to the documents and/or information or facts which have been provided to the Provider, the Client undertakes to proactively and without delay inform the Provider in this regard, as well as to assist the Provider in order to be able to monitor the business relationship and all financial transactions on an ongoing basis.

4.3. The Client undertakes to provide the Provider on first demand and without delay with any document and/or information necessary for the Provider (i) to fulfil its identification and disclosure obligations, particularly with respect to the identity of each member of the Client’s corporate bodies, each shareholder of the Client and the Client’s ultimate beneficial owners (if any), as well as the legal and tax status of any beneficial owner (if any) and of the Client and (ii) to form its own opinion about the activity carried out by the Client and its financial information.

4.4. The Client represents to the Provider that (i) its activities, products or services (as the case maybe) are not directly or indirectly prohibited or restricted by any applicable law and/or regulation, (ii) it complies with its legal and statutory obligations (tax, regulatory or others) in the jurisdictions it is operating, (iii) the funds or the benefits directly or indirectly derived from its activities, products or services (as the case maybe) do not have any criminal origin of whatever nature and in particular do not constitute the proceeds of money laundering, terrorism or terrorism financing, or tax fraud and (iv) it will inform the Provider immediately of any change or fact that needs to be brought to the attention of the Provider in this regard.

The Client also undertakes to inform the Provider without delay of any subsequent change regarding its ultimate beneficial owner(s) and in particular to communicate the change in the shareholding held by any beneficial owner as well as the identity of any new ultimate beneficial owner. The Client will provide the Provider with the relevant documentation. The Client undertakes that it has complied with all tax obligations within and outside of Luxembourg, and that any transactions that the Client undertakes shall be compliant with any tax laws and regulations within and outside of Luxembourg.

4.5. The Client also undertakes that the funds directly or indirectly allocated to the Client do not have a criminal origin of whatever nature, and in particular do not constitute the proceeds of money laundering, terrorism, tax fraud. The Client further undertakes that its benefits will not be used for terrorist financing.

4.6. Failure or delay to provide assistance to the Provider under this Clause 4 will result in the business relationship or the Services, as the case maybe, to be stopped, cancelled or terminated at no cost or liability of the Provider. The Client undertakes to inform the Provider without delay of any change in the Constitutional Documents, its shareholders and corporate bodies and to provide the Provider with the relevant documents.

 

5. OBLIGATIONS OF THE CLIENT

5.1. The Client undertakes:

5.1.1. to comply strictly with legal and administrative regulations in force during the term of the Agreement, whether in Luxembourg or abroad. Therefore, among other, the Client must (i) maintain their corporate existence, (ii) ensure that they have the right to conduct their business, (iii) obtain and maintain all pertinent authorizations, (iv) timely pay all taxes and duties on any of their assets, income or profits or any transactions undertaken or entered into by them and always comply with all tax reporting requirements;

5.1.2. not to engage in any transaction that contravenes the law, public policy, or mandatory rules (“ordre public”), good morals (“bonnes mœurs”), good business practices, the Constitutional Documents, or any other provisions and/or regulations applicable to the Client, whether in Luxembourg or abroad;

5.1.3. to provide to and/or to ensure that the Provider is provided with all the documents and/or information it has requested in order to fulfil its identification obligations, including obligations under the AML Law, and to form its own opinion about the activity carried out by the Client, its Affiliates and its financial situation;

5.1.4. to promptly inform the Provider of any significant event (including, without limitation, any litigation, conflict, investigation by any judicial or regulatory authority or other proceedings, actual or potential in which the Client is or could be involved, directly or indirectly, in any jurisdiction) that may, directly or indirectly, affect the Client or the reputation of the Provider in any way; 

5.1.5. to refrain from any action that may compromise the financial stability, independence, or reputation of the Provider, its Affiliates, partners, directors, or employees;

5.1.6. not to do anything, whether in writing or any other manner, which might give third parties the impression that the Provider participates in or assumes the management or control of the Client or guarantees its commitments;

5.1.7. to give its instructions to the Provider only in written form (letter or e-mail), the Client bearing the burden of proof that such communication has been received. However, the Provider is entitled not to execute the instructions contained in such written communications if it considers such instructions to be contrary (i) to the public policy and/or mandatory rules (“ordre public”), good morals (“bonnes moeurs”), the Constitutional Documents or any other provisions and/or regulations applicable to the Client and/or the Provider whether in the Grand Duchy of Luxembourg or abroad, or (ii) to the Agreement;

5.1.8. to cooperate without reserve with the Provider and provide it, in due time, with all the information required to enable the Provider to comply with its obligations under Luxembourg law, the Agreement and the present Terms; 

5.1.9. to provide the Provider with timely access to all data, information and contact persons for the execution of the Agreement. The Client shall be responsible for the accuracy and completeness of all data and information provided to the Provider. In this respect, the Provider is entitled to request, at any time, and the Client agrees to provide, a written confirmation that the documents, information and explanations provided in relation to the Services are complete and accurate.

5.2. It is the Client’s responsibility to obtain tax advice confirming the intended tax effects and the absence of unintended tax effects before requesting or instructing the Provider to set up any structure or carry out any transaction. The Provider is not required to verify compliance with applicable tax laws and regulations. The Provider does not accept any responsibility for the tax aspects (in the broadest sense) of any structure or transaction in which the Provider is involved for executing any request or instruction delivered to the Provider by the Client.

 

6. FEES AND PAYMENT TERMS

1. Fees

6.1.1. Fees for the Services to be performed by the Provider shall be determined in the Agreement.

6.1.2. All Fees and hourly rates are exclusive of VAT and disbursements and are subject to automatic adjustments based on the cost-of-living index applicable in Luxembourg (“Indice pondéré du coût de la vie”) as published by the STATEC (“Institut National de la Statistique et des Études Économiques du Grand-Duché de Luxembourg”).

6.1.3. In addition to the Fees, an administrative allowance of five percent (5%) of the Provider’s total fees will be charged to cover administrative expenses. Additional out-of-pocket expenses (e.g. travel expenses or courier services) or costs incurred on the Client’s behalf (e.g. translation costs, external service providers and/or public authorities or public officers fees, costs of publication with official gazettes, third parties fees, registration duties) are charged separately and will be justified by appropriate documentation. 

6.1.4. The Provider reserves the right to increase its Fees and hourly rates from time to time. Such modifications will be notified to the Client one (1) month before implementation. However, adjustments resulting from changes in the Luxembourg cost-of-living index will be applied automatically without prior notification.

6.1.5. The Fixed Fees and the Responsibility Fees are due on an annual basis and are payable in January of each year.

6.1.6. In cases where the relationship between the Client and the Provider begins during the course of the year, the Fixed Fees and the Responsibility Fees are due and payable in full regardless of the start date of the relationship and are invoiced upon the signature of the Agreement and on each first (1st) of January thereafter.

6.1.7. No adjustments will be made to the Fees paid in January of the year during which the relationship is terminated (i) by the Client or (ii) by the Provider for Serious Misconduct of the Client, without prejudice to the Provider’s right to seek damages from the Client for any loss sustained as a result of such cause. 

6.1.8. Time Spent Fees will be invoiced according to the hourly rates applicable to the persons in charge of the Services to be provided to the Client, as provided in the Agreement. Invoices will be issued based on work in progress.

6.2. Payment Terms

6.2.1. Fees will be invoiced in euros. All payments will be made in the same currency as the currency in which the Services are invoiced to the account of the Provider as indicated on the invoices. All bank charges and fees that arise out of or are in any way related to any payment made by the Client shall be borne by the Client.

6.2.2. Fees are payable within one (1) month of the invoice issuance date. Any dispute regarding an invoice must be raised within one (1) month from its issuance date. After this period, no disputes will be accepted.

6.2.3. If invoices are not settled within one (1) month of their issuance date:

    a) ten percent (10%) penalty shall apply on the invoice amount without VAT, without prejudice to any legal fees incurred by the Provider for the collection of the amounts due; and

    b) interest will be charged as provided for by Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payments in commercial transactions.

6.2.4. Should the invoices remain unpaid, Clause 10 shall apply.

6.2.5. Should any claim or dispute arise regarding the validity of the Agreement and/or the performance of the Services and/or the amount of the Fees, the Client shall not be discharged of their obligation to make the payment in full and the fees shall remain payable by the due date.

6.2.6. The Provider is entitled to retain all of the Client’s papers and documents until all amounts due or accrued have been paid in full.

 

7. TAXES

7.1. All prices are exclusive of any taxes and the Client shall be responsible for the payment of value added taxes and other taxes, duties, tax levies and other fees which are due, or may become due with respect to the Agreement and its execution.

7.2. The Client agrees to indemnify the Provider if, for any reason, the Provider has to pay any such taxes.

7.3. To the extent that (i) a matter entrusted to the Provider is likely to constitute a reportable cross-border arrangement (“Arrangement”) within the meaning of the amended law of 25 March 2020 implementing Council Directive 2018/822/EU of 25 May 2018 (“DAC 6 Law”) and (ii) the Provider does not act as an intermediary, within the meaning of the DAC 6 Law, in relation to the same matter, the Client will provide the Provider, upon request and without delay, with information on the qualification of the Arrangement for the purpose of applying DAC 6 Law as well as any supporting documents. In case no such information and supporting documents are provided, the Client undertakes to hold the Provider harmless and indemnify the Provider against all liabilities, damages, losses or claims arising from such absence.

 

8. LIMITATION OF LIABILITY

8.1. The Provider and/or its employees shall not be liable for any error of judgment, or for any loss, damage, claims, proceedings, demands, liabilities, costs, or expenses of whatsoever nature, whether direct, indirect, consequential, or otherwise, suffered or incurred by the Client or any third party, arising out of or in connection with the Agreement or the provision of Services, save where such loss or damage is attributable to gross negligence ("faute lourde"), willful misconduct ("dol"), or fraud of the Provider or its employees, as definitively determined by a final and binding judgment of a court of competent jurisdiction.

8.2.  Any liability arising from gross negligence (faute lourde), wilful misconduct (dol) or fraud on the part of the Provider and/or its employees shall be limited to the amount paid out, if any, under the Provider’s professional liability insurance policy in relation to the matter, together with the amount of the own risk deductible. In the event, and to the extent, that no payment is made under the professional liability insurance for any reason whatsoever, the total aggregate liability of the Provider and/or its employees shall in no event exceed an amount equal to two (2) times the fees charged by the Provider in connection with the relevant matter.

8.3.  If the Provider expressly agrees in writing to assume liability toward any party other than the Client (a "Third Party Beneficiary"), any liability of the Provider, as limited under these Terms or the Agreement, shall be apportioned among the Third Party Beneficiaries and the Client. Such apportionment shall be entirely the responsibility of the Third Party Beneficiaries and the Client, and any failure by them to reach an agreement on this allocation shall not give rise to any claim or liability against the Provider.

8.4.  In the event that the Client fails to perform its obligations pursuant to the Agreement, the Provider, its Affiliates and/or their employees shall not be held liable for the non-performance of their own obligations arising out of the Agreement.

8.5.  The Client hereby undertakes to hold harmless and indemnify the Provider, its employees, partners, officers and directors against any and all claims, actions, proceedings, costs, demands and expenses which are or may be brought against, suffered or incurred by the Provider in consequence of any Serious Misconduct by the Client, its employees or officers.

8.6.  The Provider shall not be required to take any legal action in connection with the performance of its obligations under this Agreement, except where mandated by Luxembourg laws and regulations, unless it has been fully indemnified to its reasonable satisfaction for all reasonable costs and liabilities associated therewith. Furthermore, if the Client requests the Provider, in any capacity, to take any action which, in the Provider’s opinion, could expose it to monetary liability or any other form of liability, the Provider shall, as a prerequisite to such action, be indemnified in a reasonable amount and manner satisfactory to the Provider.

 

9. FORCE MAJEURE

9.1. No Party shall be liable to another Party for or in respect of any failure to perform its duties and obligations under the Agreement, if it is prevented, hindered from or delayed in performing its duties and obligations under the Agreement, or for any resultant loss or damage that is caused directly or indirectly, by a Force Majeure.

9.2. The affected party shall notify the other Party in writing as soon as reasonably practicable if it believes that it will be prevented from, hindered or delayed in performing its obligations under the Agreement as a result of a Force Majeure, giving its estimate of the likely nature and duration of the relevant failure or delay. The Affected Party's obligations, to the extent affected by the cause, shall (whether or not notice has been given) be suspended during the period that the cause persists.

9.3. Under no circumstances, a Force Majeure may discharge the Client from their obligation to pay the amount due to the Provider pursuant to the Agreement.

 

10. DURATION AND TERMINATION

10.1. The Terms shall become effective on the date on which the business relationship between the Parties commences or, at the latest, on the effective date of the Agreement entered into between the Provider and the Client.

10.2. The Terms may only be terminated upon the termination of the Agreement between the Client and the Provider. They shall remain in full force and effect until such termination, subject to the applicable notice period for termination.

10.3. The Agreement is entered into for an indefinite duration. It may be terminated by either Party by providing the other Party with written notice of its intention to terminate the Agreement. Such notice shall be provided at least ninety (90) calendar days in advance. In the event that the Provider elects to terminate the Agreement, the written notice shall be addressed to the Client and to any person designated by the Client to receive notices on its behalf.

10.4. Notwithstanding the foregoing provisions, the Agreement or specific Services under the Agreement may be terminated by either Party with immediate effect in the event of Serious Misconduct by the other Party. 

10.5. In case of termination by the Provider for Serious Misconduct of the Client, the relevant written notice shall be addressed to the Client or to any person designated by the Client as addressee for any notices related to the Client. If, for any reason, the delivery of such written notice fails when sent by letter, the termination shall nevertheless take effect on the date on which the Client or its designated addressee should have received it.

10.6. The Provider is legally required to file and publish the termination of the registered office with the Luxembourg Trade and Companies Register. Such filing and publication shall be conducted at the Client’s expense.

10.7. Once Fees due to the Provider are paid, the Provider will return all books, registers, contracts and other documents belonging to the Client to the Client.

10.8. In the event that the Client fails to take delivery of its books or other documents held by the Provider on its behalf, the Provider shall be entitled to dispose of such books and documents as it deems appropriate, at the Client’s expense. The Provider shall be discharged of any liability with respect to the retention of such books and documents.

10.9. The Provider shall have the right to retain all documents belonging to the Client, at the Client’s expense, until full payment of all sums owed by the Client to the Provider has been made.

10.10. Termination of the Agreement shall be without prejudice to the Client’s obligation to settle any amounts due to the Provider as of the termination date and shall not affect any rights, claims, or remedies that either Party may have accrued under the Agreement prior to termination. 

 

11. INTELLECTUAL PROPERTY RIGHTS

11.1. The Provider (and its licensors or third parties, where applicable) owns all right, title and interest, including all related Intellectual Property Rights, in connection with its Services, documentation and website.

11.2. The Client agrees not to take any action likely to infringe, misappropriate, violate or compromise the Provider’s Intellectual Property Rights, or the Intellectual Property Rights of its licensors or third parties.

11.3. The Client agrees not to copy, reproduce or otherwise use the Provider’s name, logo, domain names, or documentation (either existing or developed by the Provider when providing the Services), without the Provider’s prior written consent.

 

12. AUDIT AND CONTINGENCY

12.1. The Provider shall maintain a complete and accurate set of records and evidence pertaining to all material aspects of the Agreement, including all related documents and processes (if any) and their performance.

12.2. The Client shall have the right, upon prior written request and at any time during the term of the Agreement, to request from the Provider copies of all records and information relevant to the provision of the Services. Such records may be deemed reasonably necessary by the Client’s internal controllers and/or external auditors to carry out their regular functions and to fulfill any additional obligations arising under applicable regulations.

12.3. If deemed necessary for the purposes of verifying the Provider’s compliance with its obligations under the Agreement, the Client or its duly authorized representative may, from time to time during the performance of the Services, carry out an on-site visit. This will enable the Client to exercise its due diligence and conduct ongoing monitoring in accordance with its legal obligations, particularly with regard to anti-money laundering (“AML”) and countering terrorism financing (“CTF”) requirements. The Provider reserves the right to deny such a request if it would result in a breach of applicable legislation or regulation.

12.4. In the event that an on-site visit is conducted, it shall take place no more than once per calendar year, except in instances where the Provider is in material breach of its obligations under the Agreement or where the Client has reasonable grounds to believe such a breach has occurred. Additional audits may also be conducted if necessary. The on-site visit shall be arranged following prior written notice of no less than five (5) business days, and shall occur during business hours at a mutually agreed time between the Parties. The Provider shall fully cooperate with the Client’s personnel or representatives during such inspections and shall ensure that appropriate staff, computing resources, and other relevant facilities are made available as required. The Client agrees to comply with the Provider’s information security, confidentiality policies, and any other applicable procedures that have been provided to the Client in advance.

12.5. Such audits or inspections shall not:

12.5.1. impose an unreasonable administrative or financial burden on the Provider;

12.5.2. disrupt the Provider’s business operations;

12.5.3. interfere with the Provider’s ability to provide Services to the Client or to other customers; or

12.5.4. cause the Provider to act in breach of any applicable legislation.

 

13. PERSONAL DATA PROTECTION

13.1. In the context of the Agreement, the Parties commit to comply with the provisions of the data protection law applicable in the Grand Duchy of Luxembourg (including but not limited to the law of 1st August 2018 on the organization of the National Commission for Data Protection and the general regime on data protection, as may be amended or replaced) and Regulation n°2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the “GDPR”) (collectively the “Data Protection Laws”) when processing personal data. Capitalized terms used throughout this Clause shall have the meaning ascribed to them under the Data Protection Laws, unless otherwise defined.

13.2. Depending on the nature of the Processing,the Provider will act either as a Data Controller or as a Data Processor:

13.2.1. The Provider shall act as a Data Controller for the Processing of personal data in relation to (i) ensuring compliance with the AML Law, and (ii) delivering the Services to the Client, except when acting in the capacity of a transfer agent within the meaning of the Financial Sector Law. The specifics of such Processing are detailed in the Privacy Notice, available here.

13.2.2. The Provider shall act as a Data Processor solely when providing the Services in its capacity as a transfer agent within the meaning of the Financial Sector Law to the Client. In this role, the Provider operates on behalf of and in accordance with the instructions of the Client, who acts as the Data Controller. The respective responsibilities of the Parties concerning such Processing are outlined in the Data Processing Addendum appended to the Agreement governing the transfer agency services.

 

14. CONFIDENTIALITY

14.1. Each Party (the "Recipient") shall treat as confidential all information, in any medium or format (whether or not marked as "confidential"), obtained from the other Party (the "Disclosing Party") either directly or indirectly, or from any other person, in the course of the Agreement. This includes, without limitation, any data, trade secrets, confidential operations, processes, methodologies, dealings, details of computer systems or other systems, the organization, business, clients, finances, transactions, or affairs of the Disclosing Party, as well as the contents of the Agreement (the “Confidential Information”).

14.2. The Recipient shall use the Confidential Information solely for the purposes of, and in accordance with, the Terms and the Agreement. In compliance with applicable laws and regulations, the Recipient may provide access to the Confidential Information to its employees, officers, members of its governing body, subcontractors, authorized agents, and professional advisers (the "Permitted Users") strictly on a "need- to-know" basis. The Recipient shall take all reasonable steps to ensure that each of its Permitted Users maintains the confidentiality of the Confidential Information to the standard required under the Agreement.

14.3. The obligations of confidentiality under this Clause 14 shall not apply to information which:

14.3.1. is or subsequently becomes part of the public domain, other than through a breach of these Terms of the Agreement;

14.3.2. is received by the Recipient from a third party who, to the Recipient's reasonable knowledge, (i) is under no obligation of confidentiality in respect of such information, and (ii) has not unlawfully obtained such information; or 

14.3.3. is independently developed by the Recipient without reference to the Disclosing Party’s Confidential Information.

14.4. A Permitted User may disclose Confidential Information if required to do so by applicable laws and regulations, or pursuant to the lawful request of any competent regulatory or judicial authority. In such circumstances, the Recipient shall, where lawful and practical, provide the Disclosing Party with prompt written notice of the disclosure, so as to afford the Disclosing Party a reasonable opportunity to prevent or limit the scope of such disclosure through appropriate legal means.

14.5. In relation to Clause 14.4, the Client acknowledges that, under Luxembourg laws and regulations, the Provider may be required to respond to and fully cooperate with any lawful request or demand made by domestic or foreign authorities exercising their statutory powers. In such cases, the Provider is legally obligated to provide the relevant information to said authorities in accordance with applicable legal procedures. Furthermore, the Provider is obliged to notify the Prosecutor-General of the Luxembourg District Court (“tribunal d’arrondissement”) of any fact that could reasonably give rise to suspicion of money laundering, in compliance with the relevant laws.

14.6. Notwithstanding any provision to the contrary in the Agreement, the Client expressly instructs the Provider to disclose the Client’s identity to counterparties, execution venues, supervisory authorities, clearing houses, issuers, or their representatives, upon request based on legal requirements or other legitimate grounds for disclosure.

14.7. The obligations set forth in this Clause 14 shall survive the termination of the Agreement and remain in force until the fifth (5th) anniversary of the effective date of termination of the Agreement.

 

15. NON-EXCLUSIVE AGREEMENT

15.1. The Client acknowledges and agrees that the Provider will be able to provide the same kind of Services to other companies incorporated or to be incorporated in Luxembourg or abroad.

 

16. ELECTRONIC COMMUNICATIONS AND PROPER INSTRUCTIONS

16.1. Electronic Communications

16.1.1. The Provider may conduct electronic communications and use software applications (including but not limited to electronic/digital signature applications) and the internet to provide the Services. There is no guarantee that electronic communications between the Provider and the Client will be secure, not-intercepted, virus free, timely or successfully delivered. The Provider shall not incur any liability resulting from or in connection with use of e-mail, software applications and/or facsimile communication, and shall not be liable to the Client or to third parties if, due to circumstances beyond the Provider’s reasonable control, such electronic communications or software applications are intercepted, delayed, lost, destroyed, corrupted, not received or received by persons other than the intended addressees. No changes may be made to any document transmitted via e-mail without the Provider’s prior written approval.

16.1.2. Neither the Provider nor the Client may be held liable for any technical incidents that may occur during electronic transmission (including infection by a virus, worm, etc.).

16.2. Proper Instructions

16.2.1. The Client hereby authorises the Provider to accept, comply with, and act upon any Proper Instruction given by an Authorised Person without further enquiry.

16.2.2. The Provider (i) may at any time refuse to execute any Proper Instruction until such instruction is confirmed in writing by an Authorised Person specified by the Client in accordance with Clause 16.2.3 only, and (ii) shall not be obligated to execute any Proper Instruction under the circumstances of Clause 16.2.4. 

16.2.3. Without prejudice to the generality of Clause16.1, the Client shall submit, and update if and as necessary, via appropriate written notice, a list of Authorised Persons, together with authorised signatures to the Provider, it being understood that the Provider shall not be held responsible for any damage caused by the fact that the signatures are fraudulent, forged, altered or corrupted. Hence, the Provider may accept the signatures as being authentic, subject to reasonable customary checks, without having to proceed with a more detailed investigation and declines all responsibility for damages that could result from the absence of any legitimisation, following reasonable customary checks, or any undetected forgery.

16.2.4. The Provider shall not have to examine whether a Proper Instruction or instruction accepted in good faith as being a Proper Instruction is necessary, relevant, advisable, complete or correct. However, the Provider is entitled not to execute a Proper Instruction which is or where the Provider reasonably believes to be contrary (i) to the public policy and/or mandatory rules (“ordre public”), good morals (“bonnes mœurs”) , the Constitutional Documents or any other provisions and/or regulations applicable to the Client whether in the Grand Duchy of Luxembourg or abroad, or (ii) to the Agreement.

16.2.5. Any Proper Instruction shall continue in full force and effect until cancelled or superseded and the Provider is entitled to rely upon the continued authority of any Authorised Person until the Provider receives notice from the Client to the contrary.

 

17.OUTSOURCING OF OPERATIONS, SERVICES AND DATA TRANSFERS

17.1. The Provider is bound by professional secrecy and may not share Client Data (as defined below), with third parties, except with the consent of the Client. 

17.2. In order to ensure that Services are provided in an optimal manner, in accordance with the best industry standards and in an efficient and cost friendly basis, the Provider, in accordance with the statutory and regulatory provisions governing the outsourcing, may outsource (but shall remain responsible for) specific tasks and/or activities while providing Services for any or all of its Clients in full or in part (the “Outsourcing”) to other service providers (the “Service Providers”).The Service Providers, with the consent of the Provider, may also sub-outsource the outsourced Services to other Service Providers (the “Sub-Outsourcing”).

17.3. The Service Providers are not necessarily subject to the supervision of the CSSF and may have their registered office in Luxembourg or abroad, either within or outside the European Union.

17.4. Any Service provided by the Provider by way of Outsourcing or Sub-Outsourcing will be provided in accordance with the Luxembourg legal and regulatory provisions relating to the outsourcing of services and on the basis of a service agreement. The Provider is liable for the compliance with any obligations incumbent upon it under Luxembourg legal and regulatory provisions.

17.5. The Service Providers are either subject to a statutory duty of confidentiality or contractually obliged by the Provider to maintain confidentiality.

17.6. The Client, and/or the authorized representative and/or agent of the Client is hereby informed that the Provider, and in particular its directors, managers and employees, will disclose certain information, including for the avoidance of doubt personal data, in compliance with Claus13, entrusted to them in the context of the Services provided (the “Client Data”) to the Service Providers in the context of such Outsourcing or Sub-Outsourcing.

17.7. Client Data includes, among others:

17.7.1. in the case of natural persons: given name and surname, date of birth, home address, tax domicile, business address, occupation, nationality, telephone number, and copies of the ID cards or passports of the Client, of its authorized representative and/or agent,  or of any other person on whom information is supplied to the Provider in the context of the business relationship (such as, for instance, the beneficial owner of the Client, if applicable);

17.7.2. in the case of legal entities and legal structures: name, date of establishment, registered office, main business activity, nationality, registration number and contact details of the Client as well as given name and surname, date of birth, place of residence, home address, business address, occupation, nationality, telephone number, tax number and copies of the ID cards or passports of the authorized representatives and/or agent of the Client as well as any other information pertaining to the aforementioned persons that has been disclosed to the Provider in the context of the business relationship (such as, for instance, the beneficial owner of the Client, if applicable);

17.7.3. general personal data of the Client, e.g. whether the Client is a publicly traded company, the size of the Client (number of employees), whether it is independent or affiliated with other companies, the duration of the business relationship with the Client, etc.;

17.7.4. information pertaining to contracts entered into between the Provider and the Client;

17.7.5. any data pertaining to the Client or any other persons whose personal information has been disclosed or becomes known to the Provider in the context of the business relationship with the Client.

17.8. A detailed list containing (i) the specific services provided by the Provider to the Client through Outsourcing or Sub-Outsourcing to Service Providers not subject to the supervision of the Competent Authorities, (ii) the country of establishment of the Service Provider, and (iii) the type of exchanged Client Data, either in whole or in part, can be found by the Clienton the Provider’s website at ACCESS TO CLIENT DATA , section “Data Transfer for Outsourcing and Sub-Outsourcing Purposes” (the “Access to Client Data Table”).

17.9. With regards to Outsourcing or Sub-Outsourcing, the Client hereby expressly consents, both on its own behalf and on behalf of its authorized representatives and/or agents as well as its beneficial owners, as applicable, to the aforementioned disclosure of Client Data to the Service Providers.

17.10. In this respect, the Client confirms that it has informed all of the Client’s authorized representatives and/or agents as well as its beneficial owners (if applicable) of the existence and contents of any Outsourcing or Sub-Outsourcing and, in particular, of the contents of the Access to Client Data Table, that it is keeping them informed of any changes in this respect and that it has obtained consent to have their Client Data disclosed to the Service Providers as well as any other consent required or, in the event of changes, that it will always endeavour to obtain such consent in advance in a timely manner.

17.11. The Provider may at any time change its Outsourcing or Sub-Outsourcing, i.e. provide additional services to the Client through Outsourcing, or Sub-Outsourcing, change on existing Outsourcing or Sub-Outsourcing and, where applicable, proceed to a new Outsourcing or Sub-Outsourcing.

17.12. In such case the Provider shall then notify the Client and/or its authorized representative and/or agent as well as its beneficial owners, as applicable, of any changes to Outsourcing or Sub-Outsourcing and the related changes to the Access to Client Data Table in accordance with Clauses 16 and Clause 18 of these Terms.

17.13. The Client is solely liable for obtaining the necessary consent from its representatives and/or agents as well as its beneficial owners, as applicable, and agrees to indemnify and hold the Provider harmless in this respect.

17.14. The Client and/or its authorized representative and/or agent as well as its beneficial owners, as applicable, also agree that, except in the case of gross negligence or wilful misconduct, neither the Provider nor the Service Providers are liable in any respect for any loss, damage or expense that may be caused in connection with the aforementioned disclosure of Client Data to the Service Providers.

17.15. Irrespective of the aforementioned circumstances in which the Provider may share Client Data in the context of Outsourcings and Sub-Outsourcings, the Provider may also be brought, notably in order to enhance the quality of the Services to the Client, to ensure such Services are provided with the best industry standards and in a more efficient and cost friendly basis, to exchange and thus also to share Client Data with other third party service providers outside of the context of an Outsourcing and Sub-Outsourcing.

17.16. The Client hereby expressly consents, both on its own behalf and on behalf of its legal authorized representatives and/or agents as well as its beneficial owners, as applicable, to the aforementioned disclosure of Client Data outside of the scope of Outsourcings and Sub-Outsourcings to other third-party service providers.

17.17. In this respect, the Client confirms that it has informed all of the Client’s authorized representatives and/or agents as well as its beneficial owners, as applicable, of the existence and contents of the aforementioned disclosure of Client Data outside of the scope of Outsourcings and Sub-Outsourcings and of the contents, available at the Access to Client Data Table, section “Data Transfer other than for Outsourcing and Sub-Outsourcing purposes”, that it is keeping them informed of any changes in this respect and that it has obtained consent to have their Client Data disclosed to other third party service providers as well as any other consent required or, in the event of changes, that it will always endeavour to obtain such consent in advance in a timely manner.

17.18. The Provider may at any time change the disclosure of Client Data outside of the scope of Outsourcings and Sub-Outsourcing and thus proceed to change of the Access to Client Data Table.

17.19. In such case the Provider shall then notify the Client and/or its authorized representative and/or agent of any changes to the disclosure of Client Data outside of the scope of Outsourcings and Sub-Outsourcing, and the related changes to the Access to Client Data Table, in accordance with Clause 16 and Clause 18 of these Terms.

 

18. AMENDMENT

18.1. The Provider reserves the right to amend and supplement these Terms at any time.

18.2. Any amendments or supplements to these Terms shall take effect on the earlier of (i) three (3) months following the publication of such amendments on the Provider’s website, or (ii) thirty (30) calendar days after the Client has been formally notified in writing.

18.3. Should the Client raise an objection to any such amendments or supplements within the prescribed time period, both Parties shall make diligent efforts to negotiate and agree upon mutually acceptable modifications to these Terms within a reasonable timeframe. Should the Parties fail to reach an agreement, either Party reserves the right to terminate the related Agreement with immediate effect.

 

19. SEVERABILITY

19.1. In case one or more provisions of these Terms and/or of the Agreement should be considered invalid, illegal, inapplicable, unlawful or unenforceable for any reason whatsoever, the other provisions shall remain valid and enforceable according to its terms.

19.2. In the event of such partial invalidity, the Parties shall seek in good faith to agree on replacing any such legally invalid, illegal, inapplicable, unlawful or unenforceable provision with a valid and enforceable provision which shall most nearly and fairly reflect the Parties’ intent in entering into these Terms and/or Agreement.

 

20. NON-WAIVER

20.1. Tolerance by one Party regarding any delay, breach or failure in the performance of the obligations by the other Party with respect to these Terms and/or the Agreement shall not affect or restrict such Party’s rights and powers arising under these Terms and/or the Agreement.

 

21. NON-SOLICITATION

21.1. During the term of the Agreement and for a period of twelve (12) months thereafter, the Client shall not, directly or indirectly, solicit or attempt to solicit any employee of the Provider or any of its Affiliates to leave their employment for the purpose of employment with the soliciting Party. Any breach of this Clause shall result in an indemnity payment equal to thirty-six (36) months of the employee’s last remuneration by the Provider, to be paid by the hiring Party to the Provider.

21.2. Notwithstanding the above, an employee's response to a general recruitment effort or employment advertisement shall not be considered a breach of this Clause.

 

22. ASSIGNMENT

22.1. The Provider may, without the prior written consent of the Client, assign or transfer these Terms and/or the Agreement or any of its rights under these Terms and/or the Agreement, or sub-contract any or all of its obligations under these Terms and/or the Agreement.

22.2. The Client may not, without the prior written consent of the Provider, assign, transfer, charge or deal in any other manner with these Terms and/or the Agreement or any of its rights under these Terms and/or the Agreement, or purport to do any of the same, nor sub-contract any or all of its obligations under these Terms and/or the Agreement.

 

23. CHANGE OF CONTROL OF THE CLIENT

23.1. For the purposes of this Clause, a change of control is defined as any change (i) in the direct or indirect ownership of the majority of the voting share capital of the Client, or (ii) in the right to determine the composition of the majority of the board of directors (or any other management body) of the Client, whether through ownership of share capital, contract, or otherwise (a “Change of Control”).

23.2. In the event of a Change of Control of the Client, the Client shall promptly notify the Provider of such Change of Control and comply with all the requirements of Clause 3 of the Terms.

23.3. The Provider shall have the right to terminate the Agreement immediately, without prior notice and without providing any justification, following such Change of Control.

 

24. SURVIVAL

24.1. In case of termination of the Terms, the Clauses of the present Terms, in particular Clauses 4, 5, 6, 8, 13, 14, 15 and 21 which are expressed or implied to continue after termination or expiration shall survive to the termination.

 

25. COMPLAINTS

25.1. The Provider is committed to providing the Client with the highest quality of service. However, if the Client has any concern or complaints about any of the Services, it may follow the Client Complaints Procedure available at here.

 

26. GOVERNING LAW AND JURISDICTION

26.1. These Terms and the Agreements shall be governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg.

26.2. Any dispute arising regarding the existence, the performance or the interpretation of these Terms and the Agreements shall be submitted to the exclusive jurisdiction of the courts of Luxembourg, Grand Duchy of Luxembourg.