INTRODUCTION
1. INTRODUCTION
These terms and conditions apply to all business undertaken by McGrath Tonner Corporate Services Limited (“MTCS”) and apply between (1) MTCS and (2) the “client” (as defined below). All obligations undertaken or assumed by persons within the definition of client shall be joint and several.
2. CORPORATE MANAGEMENT
2.1 Registered Office: Where MTCS provides the registered office of an entity formed or registered in the Cayman Islands or a limited partnership registered in the Cayman Islands or acts as agent for service of process or representative person for anyone, whether for a foreign company registered under Part IX of the Companies Act or under the Merchant Shipping Act or otherwise (each the ‘”Entity”):
2.1.1 MTCS will maintain the statutory registers required by the laws of the Cayman Islands subject to the client providing all necessary documents and information for that purpose.
2.1.2 MTCS will arrange for payment of all fees due in accordance with the Companies Act or relevant limited partnership act provided that MTCS shall be in cleared funds at least 5 working days before the due date.
2.1.3 MTCS will forward all official mail (as defined below) received on behalf of the Entity to the contact person as advised by the Entity. Official mail will be dispatched (within 5 working days of receipt) to the email, facsimile number or postal address provided to MTCS by the Entity for such purpose from time to time. MTCS accepts no responsibility for non-receipt by the client of such official mail or any delay in such mail being received by the client. MTCS has no obligation to notify the contact person by telephone or to ensure or confirm actual receipt of any notification. Subject to the following sentence, correspondence other than official mail received for the Entity will be dispatched (within 12 working days of receipt) to the email, facsimile number or postal address provided to MTCS as aforesaid. Bank and brokerage statement and the like may be retained on the Entity’s file, may not be dispatched unless specifically requested by the Entity and the client waives all claims against MTCS for any loss caused to the Entity or any other person as a result thereof.
2.1.4 If requested to do so by the client, MTCS may retain and not dispatch items of mail for an Entity in which case the Entity waives all claims against MTCS for any loss caused to the Entity accordingly.
2.1.5 MTCS is authorised to sign any annual returns and other fillings required in the Cayman Islands on behalf of the Entity.
2.2 Shareholders: Where MTCS provides nominees in whose names any registered shares of an Entity shall be held:
2.2.1 MTCS shall not be obliged to accept any shares which are not fully paid or credited as fully paid or mortgaged or encumbered and, if MTCS agrees to do so, the client shall be liable to MTCS for any liability upon such shares.
2.2.2 Subject to express provisions of these terms and conditions to the contrary, MTCS shall, as regards the exercise of shareholders rights and the application of any dividends received, act upon instructions duly received in accordance with these terms and conditions, save where contrary to law.
2.2.3 MTCS may without specific authority or liability cause any shares to be transferred by the nominee holder for the time being to MTCS or any other nominee, subsidiary or officer of MTCS, as nominee.
2.2.4 MTCS is authorised, but not obliged, without the need for specific instructions to cause annual general meetings of the shareholders to be held if so required by the Companies Act.
2.2.5 If the beneficial owner of any share shall die, become bankrupt or of unsound mind or, being an entity having legal personality, shall enter into winding up or any analogous process, MTCS may but shall not be obliged to require proof that any person claiming authority by or through the beneficial owner has such authority and MTCS may in its complete discretion and without liability for the consequences, act or decline to act on the directions of such claimant or on its own initiative.
2.2.6 No transfer, pledge or other encumbrance of the beneficial ownership of any share or any interest therein shall be effective save with written notice signed by the beneficial owner received by MTCS with such proof as MTCS may require in its complete discretion. Nonetheless, MTCS shall not be liable to any person for acting in reliance upon any alleged transfer, pledge or other encumbrance.
2.2.7 If the beneficial ownership of any share is held by more than one person, MTCS shall be entitled to regard each of them as having full authority on behalf of all of them for all purposes including the giving of instructions and receipts. Subject to contrary instructions from an authorised person, if any share or beneficial ownership of any share is held by more than one person or other entity having legal personality it shall be considered to be held jointly with the right of survivorship and upon the death of any joint owner ownership of such share will pass automatically to the survivors. In such case MTCS may accept Instructions from any joint owner without notifying the others. If any joint owner shall die his personal representatives and the surviving joint owners must notify MTCS in writing immediately. Until MTCS receives such written notice, MTCS may act and treat the shares as though all joint owners were living. Before or after MTCS receives a written notice regarding the death of one of the joint owners, MTCS may ask any joint owner for certain documents or take or refuse to take any other actions that MTCS as deems necessary in its sole discretion.
2.3 Directors and Officers: Where MTCS agrees to provide any director or officer of an Entity:
2.3.1 MTCS may without specific instructions cause any such director or officer to resign and shall not incur any liability for doing so.
2.3.2 Any director or officer provided by MTCS may decline to act save upon the recommendation, opinion or advice of any authorised person.
3. GENERAL
3.1 Directions, recommendations, opinions and advice
3.1.1 Directions, recommendations, opinions or advice of any authorised person (as defined below) may be accepted by MTCS save where otherwise provided herein and the burden of proving that no such directions, recommendations, opinions or advice have been given shall be the client’s.
3.1 2 MTCS shall have no liability for acting in reliance upon any directions, recommendations, opinions or advice given by any authorised person.
3.1.3 MTCS accepts no responsibility for determining whether any directions, recommendations, opinions or advice purportedly given by an authorised person are genuine and in fact given by an authorised person.
3.1.4 In the case of an authorised person which is a body corporate, firm or other entity other than a single individual person, MTCS shall be entitled to rely upon any directions, recommendations or advice given by any person purporting to be an officer of or otherwise authorised on behalf of such authorised person.
3.1.5 Until MTCS shall have received written notification of revocation from the client, MTCS shall not be obliged to recognise any other notification that the authority of any authorised person has been revoked.
3.1.6 In no event shall MTCS or any director or officer provided by MTCS or any subsidiary or affiliate of MTCS be obliged to act or omit to take any act (whether or not on the directions, recommendations or advice of any authorised person) if such act or omission would be disadvantageous to MTCS or the Entity in its sole and absolute discretion including without limitation if in the opinion of MTCS:
(I) The act would be illegal or would or might result in any liability on the part of MTCS in any jurisdiction;
(ii) The act would be contrary to the best interests of the Entity, MTCS or any other client of MTCS;
(iii) The act would be ultra vires such Entity or contrary to their duties and obligations as directors and officers, to law or to best practice;
(iv) The act would or might require the expenditure of monies in excess of those held by MTCS on behalf of the Entity and which are available for the purpose; or
(v) The relevant directions, recommendations or advice shall be incomplete or uncertain or MTCS shall have grounds for questioning the genuineness or validity of the same or MTCS shall have received conflicting instructions. However, MTCS shall be at liberty to act notwithstanding the existence of any one or more of the foregoing circumstances (in particular, without limitation where MTCS provides directors).
3.1.7 In any case where MTCS may seek directions, recommendations or guidance from an authorised person but such directions, recommendations or guidance shall not be forthcoming in timely fashion MTCS shall be authorised (but not obliged) in its complete discretion to act upon its own initiative without liability for any resulting loss.
3 1.8 In no event shall the client or any authorised person have any authority or purport to have any authority on behalf of MTCS. Nor shall the client or any other person have any authorlty or purport to have any authority on behalf of any Entity for any purpose whatsoever save to the extent, if any, that the client or such person shall be a director or officer of the Entity and shall properly derive his authorlty from that office or shall otherwise be properly authorised by the Entity.
3.2 Indemnity
The client hereby undertakes and agrees to indemnify MTCS, its subsidiaries and all shareholders, subsidiaries, directors, officers, employees or partners of MTCS and McGrath Tonner law firm (hereinafter “McGrath Tonner” and, together with MTCS, the “Indemnified Persons”) and to hold them harmless and to keep them indemnified and held harmless from all actions, suits, proceedings, claims, demands, costs and expenses whatsoever which may be taken or made against the Indemnified Persons or which may be incurred or become payable by the Indemnified Persons in respect of or arising out of Indemnified Persons performing or providing any services for the Entity, holding any office, directorship or shareholding in the Entity or by reason of or in consequence of any decision or act made by any of the Indemnified Persons in relation to the Entity, its shareholders, directors and officers (together the ‘”Services”) except in the case of fraud of the Indemnified Persons. The Indemnified Persons shall not be liable for any indirect or consequential damages or for any loss or damage whatsoever suffered by the Entity, its shareholders, directors and officers however arising unless resulting from the fraud of MTCS.
3.3 Undertaking
The client hereby undertakes that the Entity will not be involved in any activities which would breach the laws or regulations or be regarded as immoral or criminal in the Cayman lslands or other jurisdictions.
3.4 Subsidiaries, Agents and Advisers
MTCS may act by its subsidiaries and affiliates and retain on its own behalf or on behalf of an Entity the services of attorneys (including McGrath Tonner), accountants and other advisers and shall be entitled to reimbursement of all fees and disbursements so incurred. MTCS shall be entitled to rely upon any advice so obtained if from a professional person or a person reasonably believed to be competent to give advice and MTCS shall in no event have any liability for anything done or omitted to be done in reliance upon such advice. If MTCS shall decide to obtain such advice it shall not be liable for declining to act pending receipt of such advice.
3.5 Forgeries
Under no circumstances shall MTCS or any officer or agent of MTCS be liable to determine the authenticity or validity of any instrument, document or communication, whether purporting to be signed by an authorised person or a third party, or for relying in good faith in any manner upon any such instrument, document or communication which may prove to have been forged or otherwise invalid.
3.6 Conflicting interests
3.6.1 Where the client is acting as a trustee or in any other fiduciary capacity or where the rights or interests of the client are subject to any encumbrance, equity or third party Interest, then, notwithstanding any actual notice of the same to MTCS, MTCS shall be entitled to disregard the same and to treat the client as the absolute beneficial and unencumbered owner of the Entity concerned subject always to any written directions from the client to MTCS properly made in accordance with these terms and conditions and any other agreement between MTCS and the client.
3.6.2 If MTCS shall consider that it is or may be subject to conflicting claims in respect of any Entity or any property or assets thereof, MTCS may at its entire discretion take such steps as it may deem necessary (including an application to the Court in any jurisdiction by way of interpleader or analogous process) to safeguard its interests and shall not in any event be liable for complying with any order of any Court in the Cayman Islands or elsewhere. MTCS shall be entitled without liability to the client, pending determination of any such conflicting claim, to refuse to pay or deliver to the client all or any part of the account, property or assets as aforesaid which are the subject of conflicting claims or to act in any other manner that might prove to be improper upon the final determination of the conflicting claims. Without prejudice to any other terms and conditions, MTCS shall be entitled to charge the client with the amount of any legal or other costs incurred by MTCS in connection with the aforesaid.
3.6.3 If MTCS shall consider it to be necessary or desirable in its own interests to have any question or matter determined by a Court of competent jurisdiction in any part of the world, it shall be at liberty to apply for the same and, pending such determination, to decline to act on any matters concerned with such determination. Without prejudice to any other terms and conditions MTCS shall be entitled to charge the client with the amount of any legal or other costs incurred by MTCS in connection with the aforesaid.
3.7 Fees
3.7.1 Save where MTCS has expressly agreed to the contrary, fees shall be payable for services rendered according to MTCS’s scale of fees from time to time in force. Interest is payable, unless waived, at a rate of 10% p.a. on all sums due and owing for more than 120 days.
3.7.2 In addition MTCS shall be reimbursed for all costs, expenses, and disbursements (including fees of legal advisors and counsel) plus a reasonable addition for overheads and administration costs incurred in or about the provision of its services or the exercise of its powers, rights and remedies.
3.7.3 Liability for the fees and disbursements of MTCS shall be that of the client and, if more than one, of the clients jointly and severally. MTCS may also recover the same from the Entity.
3.7.4 MTCS is authorised to pay from any funds that it holds its own fees and disbursements and McGrath Tonner’s legal fees and disbursements in respect of or relating to the client and directors or officers thereof and to deposit in McGrath Tonner’s (noninterest bearing) escrow account any funds that it receives in respect of or relating to the client and directors or officers thereof.
3.8 Miscellaneous
3.8.1 MTCS and the client shall comply with the laws of the Cayman Islands; the client shall be responsible for drawing the attention of MTCS to any relevant requirements of the laws of other jurisdictions and the client shall comply with all such laws. The client shall ensure that no directions, recommendations or advice to MTCS would involve a breach of the laws of any relevant Jurisdiction.
3.8.2 The client will provide to MTCS such documentation and information as MTCS may, at its sole discretion, require to enable MTCS to comply with all applicable laws and regulations in force in the Cayman Islands. The obligation upon the client in this regard, and for any indemnity, exculpation and other provision intended to safeguard or protect MTCS and for any other obligations intended to have continuing effect shall be continuing obligations and shall continue to have effect notwithstanding termination of this agreement.
3.8.3 MTCS may retain client files, papers and documents (together “Client Files”) in storage for a period of up to six years from the dissolution of the Entity after which they may be destroyed without liability on the part of MTCS. During such 6 year period and thereafter MTCS shall have no liability for the loss, damage or destruction of client files. MTCS and McGrath Tonner may exercise a lien over and retain all Client Files and may refuse to provide services until its and McGrath Tonner’s fees, costs and disbursements and any indemnity have been settled or provided for in full to their satisfaction. Subject thereto, MTCS will return any Client Files in its possession to which a client is entitled upon request subject to being reimbursed for its handling, photocopying and delivery costs. Client Files may be retained by MTCS in the form of electronic records only and MTCS may destroy hard copies of client flies where Client Files are retained in the form of electronic records.
3.8.4 It shall be the sole responsibility of the client to obtain such advice as to taxation or any other matter of law within or without the Cayman Islands as may be appropriate or desirable, and under no circumstances shall MTCS have any responsibility for the efficacy for any purpose of any agreement, arrangement or structure established by or upon the instructions of the client or an authorised person. MTCS in its entire discretion may require evidence, where it deems this necessary that the client has engaged legal representation in connection with its projected business with MTCS. Furthermore, it is the
sole responsibility of the client to assure itself that such legal representation is adequate for its needs, and MTCS accepts no liability or responsibility for the adequacy of such legal representation.
3.8.5 Unless otherwise agreed in writing with MTCS. It shall be the sole responsibility of the client to keep proper accounts of an Entity and to provide them to MTCS promptly upon request and provide all necessary documents to MTCS to enable statutory filings.
3.8.6 These terms and conditions (including fees) may be amended or added to unilaterally by MTCS upon not less than thirty days’ notice of such amendment. The terms and conditions for the time being in force will be available for inspection by clients during normal business hours of MTCS.
3.8.7 These terms and conditions (subject to any amendments or additions thereto) shall bind and ensure to the benefit of the respective heirs, estates, assigns and successors of the client and MTCS. The client’s contractual relationship is with MTCS only and not with any of the Related Parties (as defined below). Notwithstanding anything to the contrary herein, the Related Parties shall have no liability to the client for any loss or damage the client may suffer or incur in connection with the Services, whether direct, indirect or consequential, under any circumstances whatsoever.
3.8.8 MTCS may terminate its relationship with the client and may decline to provide further services to the Entity upon giving not less 30 days’ notice of termination to the client. Further, if MTCS shall consider that the client or any authorised person shall have failed to observe and/or comply with these terms and conditions or any other understandings reached with MTCS, MTCS may at its option terminate this agreement forthwith. Termination pursuant to this paragraph or otherwise shall not prejudice any accrued rights or liabilities nor the various provisions of these terms and conditions for the protection, indemnity and security of MTCS.
3.8.9 These terms and conditions and the relationship between MTCS, the client, and any Entity shall be covered by and construed in accordance with the laws of the Cayman Islands. The parties hereby agree that any dispute, claims or differences arising out of this agreement or otherwise shall be subject to the exclusive jurisdiction of the Courts of the Cayman Islands.
3 8.10 In these terms and conditions unless there be something in the subject or context inconsistent with such construction:
3.8.10.1 The singular shall include the plural and vice versa and words importing any gender shall include all genders;
3.8.10.2 Words importing persons shall include companies or associations or bodies of persons whether corporate or unincorporated;
3.8.10.3 Reference to laws or statutes are to laws and statutes of the Cayman Islands and include any revisions, statutory modifications and re-enactments thereof for them time being in force.
3.8.11 In these terms and conditions, the following words and expressions shall have the following meanings:
3.8.11.1 “authorised person” means the client and any person, Entity or other entity from whom MTCS is authorised or instructed to accept directions, recommendations or advice, whether such authorisation shall be general or limited;
3.8.11.2 “client” includes the Entity for which MTCS provides services, each shareholder and partner thereof and, if different, each beneficial owner of any interest therein;
3.8.11.3 ‘”MTCS” includes, in the context of any indemnity or liability and where the interests of the shareholder(s), subsidiaries, affiliates, officers, employees and agents, past, present and future of MTCS are concerned (the “Related Parties”) or the context otherwise so requires or admits Related Parties; to the intent, inter alia, that all the protections, exculpations and indemnities of MTCS shall ensure to the benefit of the Related Parties and shall be held and may be enforced by MTCS for itself and as trustee for and on behalf of the Related Parties;
3.8.11.4 “Official mail” means all correspondence from the Cayman Islands Government, statutory, legal and regulatory proceedings and notice of threatened legal and regulatory proceedings.
3.8.12 This Agreement contains the entire agreement between the parties with respect to the subject matter here-of, supersedes all previous agreements and understandings between the parties with respect hereto, and may not be modified except by an instrument in writing signed by the duly authorised representatives of MTCS.