1. 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 (a) the applicable laws, regulations and decrees, including, without limitation, those related to business organization and the prevention of money laundering; (b) the Entity’s articles of incorporation / articles of association / memorandum of association / deed / by-laws / operating agreement / partnership agreement; and (c) any shareholders’ / members’ / partners’ resolutions. In any event, Amicorp will perform its duties and render the Services with due care and skill 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 and 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 an acceptance.
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 company of Amicorp Group or an outside service provider; however, Amicorp will remain liable for its obligations under the Agreement.
1.8 Amicorp’s Actions.Notwithstanding any provision in these Terms of Business or the Agreement, Amicorp may, act or refrain from acting when : (a) Amicorp has fiduciary duty and Amicorp considers necessary, expedient or prudent to do so; or (b) a silence from the Principal for more than five (5) days from the date of notice to a course of action suggested by Amicorp will constitute acceptance of the suggested course of action; or (c) such action is in breach of any applicable laws or regulations or directions; or (d) such action is not in compliance with the Entity’s articles of association/ memorandum/deed/ by-laws/ partnership agreement.
2. FEES, EXPENSES AND PAYMENT
2.1 Fees. In consideration of the provision of the Services, the Principal and the Entity agree 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. The fees and other invoice amounts payable by Principal and Entity for the Services rendered by Amicorp shall be in accordance with the terms of the Agreement. Amicorp is entitled, at its sole discretion, to adjust its fees, hourly rates and disbursements due to inflation, changing market standards or conditions, or other special circumstances. And, in general, 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, 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, consultant, translator, or notary.
(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 will be entitled to demand payments before commencing the provision of any Services requested, which estimate amounts will be detailed in pro-forma invoices. 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 United States Dollars Five Thousand (USD 5,000) 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 in accordance with Clause 16.3 (Notice), who will have the right to object to any material or significant items or amounts contained in each invoice within ten (10) calendar days of the date of successful transmission or receipt of the invoice.
(c) Payment by Debit. Amicorp is hereby irrevocably authorised by Principal and 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 payment interest charge and any other charges. The aforesaid clause shall be applicable only where Amicorp is acting in fiduciary capacity for the Entity.
(d) Late Payment Interest Charges 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. The rate of interest shall be 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. 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 partial payment or late payment interest charge 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 and 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.
3. 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 organisation, based on Customer Due Diligence (“CDD”) requirements of the Financial Action Task Force (FATF) and the Organisation for Economic Cooperation and Development (OECD) and national laws, decrees, 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 his/her/its responsibility to provide Amicorp with any and all information and documents, including but not limited to agreements/contracts, deeds, certificates, invoices, bank statements and other legal or financial documents, to enable Amicorp to discharge its CDD obligations, as requested by Amicorp;
(e) Based on the foregoing, Principal also agrees that it will be his/her/its responsibility to provide Amicorp (including the relevant Affiliate and the Operations Department of the Central Office) with (read-only) access to all Entity’s bank accounts, including but not limited to current/checking account, savings account, foreign exchange account, investment account, brokerage account, trading account, corporate account, business account, i.e. (read-only) access to online banking system / electronic bank platform to enable Amicorp to discharge its transaction monitoring and accounting obligations, as requested by Amicorp; and
(f) 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:
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.
4. CONFIDENTIAL INFORMATION
This Agreement shall apply to all Confidential Information that is obtained from or disclosed by or on behalf of a party (“Discloser”) or its directors, officers, employees, agents, investors and consultants (including attorneys, financial advisors and accounts) (collectively, “Representatives”) to the other party (“Recipient”) whether disclosed or obtained before or on or after the Effective Date. “Confidential Information” means all information, data, documents, agreements, files, and other materials (in any form or medium of communication, including whether disclosed orally or disclosed or stored in written, electronic, or other form or media) relating directly or indirectly to Discloser’s, or to any of Discloser’s businesses, affairs, customers, assets, properties, or prospects. Confidential Information includes, without limitation: (a) the existence and terms of this Agreement, (b) discloser’s trade secrets, technical data and specifications, design information, customer and prospect lists, pricing and financial information, business plans and technical and/or business requirements; (c) all notes, analyses, compilations, reports, forecasts, data, studies, samples, interpretations, summaries, and other documents and materials (in any form or medium of communication) prepared by or for Recipient or its Representatives, which contain or otherwise reflect or are derived or based in whole or in part on such information, data, documents, agreements, files, or other materials (collectively, “Notes”); (d) any information that can reasonably be deemed confidential in nature and (e) the fact that the Confidential Information has been made available to Recipient or its Representatives, the existence and terms of this Agreement, any terms discussed relating to the Agreement, and the fact that discussions are taking place or have taken place concerning the Agreement and its execution.
Exceptions. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement by Recipient or its Representatives; (b) is, prior to disclosure hereunder, lawfully known to Recipient without a duty of confidentiality, as evidenced by Recipient’s records; (c) is disclosed to Recipient without confidential or proprietary restriction by a third party who rightfully possesses the information (without confidential or proprietary restriction); or (d) is independently developed by Recipient without any use of or reference to the Confidential Information.
Obligation of Confidentiality. Recipient shall: (a) hold the Confidential Information in strict confidence and not use (or permit the use of) any Confidential Information except as necessary to execute the Agreement; (b) exercise the same degree of care to prevent unauthorised disclosure of the Confidential Information as Recipient takes to preserve and safeguard its own confidential information but, in any event, no less than a reasonable degree of care; (c) not disclose any Confidential Information (including any information derived therefrom) to any third person other than to Recipient’s Representatives who: (i) have a need to know the Confidential Information in order to execute the Agreement; and (ii) are bound by confidentiality obligations at least as restrictive as those contained herein; (d) not copy or reverse engineer any Confidential Information or export or re-export (within the meaning of U.S. or other export control laws or regulations) any Confidential Information or product thereof; and (e) promptly notify Discloser upon discovery of any unauthorised use or disclosure of Confidential Information, cooperate with Discloser to help regain control of the Confidential Information, and take reasonable steps to prevent any further unauthorised use or disclosure. Recipient shall not reproduce Confidential Information in any form except as required to execute the Agreement. Recipient acknowledges that a breach of this Agreement by any Representative of Recipient constitutes a breach of this Agreement by Recipient.
Disclosures Required by Law. If Confidential Information is required to be produced by court order or government authority (or otherwise as required by applicable law), Recipient may disclose such Confidential Information; provided that Recipient: (a) provides Discloser with prompt and prior written notice of the obligation, unless prohibited by applicable law; (b) if requested by Discloser and at Discloser’s expense, assist Discloser in obtaining a protective order or other appropriate relief; and (c) to the extent a protective order or other remedy is not obtained, (i) discloses only that portion of Confidential Information that it is legally required to disclose; and (ii) uses its best efforts to obtain assurances that confidential treatment will be accorded to such Confidential Information.
Ownership. Neither this Agreement nor any disclosure of Confidential Information grants Recipient any license under any patents, copyrights or other intellectual property rights. As between the Parties, Discloser retains all right, title and interest, including all intellectual property rights, in and to its Confidential Information.
Return of Confidential Information. Promptly upon termination of this Agreement or the written request of Discloser, Recipient shall return to Discloser all copies of the Confidential Information in its (and its Representatives’) possession, and destroy all Notes. Recipient shall send a letter to Discloser, signed by an officer of Recipient, certifying its compliance with the terms of this Section if requested by Discloser. Notwithstanding the foregoing sentence, Recipient will not be obligated to return or destroy any Confidential Information to the extent the maintenance of the Confidential Information is required for legal or reasonable internal policy compliance purposes, or is embedded in Recipient’s electronic files as part of its normal back-up and archiving procedures (notably in connection with Clause 8 – Confidentiality). Recipient’s obligations hereunder, with respect to Confidential Information retained under this paragraph, will continue for so long as such Confidential Information is retained except to the extent such Confidential Information subsequently becomes publicly known or available without breach of this Agreement by Recipient or its Representatives.
5. PERSONAL DATA
The parties agree to comply with the provisions of Schedule 1 (Personal Data Protection). The Schedule 1 (Personal Data Protection) is an integrated part of this Agreement and Terms of Business. In case of contradiction between the Agreement and/or the Terms of Business and the Schedule 1 (Personal Data Protection), the provisions of Schedule 1 (Personal Data Protection) shall prevail regarding all (but only) personal data protection aspects.
6.1 Requests. Subject to Clause 1.8, Amicorp may act and rely upon written or electronic requests, notifications, instruments or documents of any kind (more fully specified under Clause 16.3 on Notice), which appear to have been signed (in original or facsimile or scanned image), endorsed or prepared or sent by Principal/Entity/Authorised Person provided Amicorp at its sole discretion has the right to verify or authenticate any such request, notification, instrument or document, but shall have no obligation to verify or authenticate any request, 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, 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.
6.2 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 damage 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 Amiportal (“Amiportal” which term includes any successor system or application, is a web-based application to access corporate documents, invoices and initiate payment of invoices) (on an “as-is” basis) to enable Principal and Authorised Person(s) to view electronic documents of Entity and to have 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 Amiportal. The Principal or Entity’s authorised representatives will be solely responsible to exercise such right to access, view, and communicate and, in no event shall the password be disclosed to any unauthorised person 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.
7. 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.
8.1 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”).
8.2 Recipient may disclose the Disclosing Party’s confidential information: (a) 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 (b) as may be required by law, court order or any governmental or regulatory authority.
8.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Agreement.
9. REPRESENTATIONS; WARRANTIES; COVENANTS
9.1 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, (collectively referred to as “Associates”), to comply (as applicable) with the following:
(a) serve at least thirty (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;
(b) 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;
(c) provide all information as required for the purpose of the Entity’s compliance with its statutory, legal or regulatory obligations; and
(d) 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.
9.2 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 and the Associates (for purposes of this provision only, each of these persons is collectively referred to as “They”):
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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 government authorities under applicable laws and regulations; and
(g) They comply with all relevant legislation in relation to the Services and shall obtain and maintain all necessary licences and consents.
10. 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.
11.1 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. 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.
11.2 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.
12.1 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 gross 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, PARTIES AGREE THAT THESE LIMITATIONS AND EXCLUSIONS ARE REASONABLE. AMICORP’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING GROSS 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.
12.2 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.
12.3 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) 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; and
(e) loss arising from a misunderstanding or transmission error or fraudulent requests received through telephone, telex, facsimile, email or any other means of communication irrespective of authentication and Amicorp acting upon such request. 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.
13. SUSPENSION AND TERMINATION
13.1 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.
13.2 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:
(a) 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
(b) In the event that the other party is subject of investigation by a regulator or governmental authority for involvement in any money laundering activity or is charged with any criminal offence; or
(c) Principal or Entity does not comply with the laws or regulations of any applicable jurisdiction; or
(d) 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
(e) If the other party ceases to do business, or otherwise terminates its business operations; or
(f) 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; or
(g) Amicorp is unable to contact Principal or its representative(s) for a period in excess of three (3) months; or
(h) 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 authorised 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.
13.3 Consequence of Termination
(a) Amounts Due; Right to Retain Documents. If the Agreement is terminated in accordance with this Clause or the relevant provision 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.
(b) Termination for Dissolution; Document Retention. Amicorp will retain such Entity’s and Principal’s records or copies of records, as applicable, for the minimum statutory period and use such records and copies of records in accordance with the statutory requirement. Amicorp 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.
14. 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.
15. DISPUTE HANDLING; JURISDICTION
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 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.
16.1 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.
16.2 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.
16.3 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: (a) if sent by courier: at the moment of delivery by the courier to the addressee; (b) if sent by registered letter: on the date noted on the return receipt; and (c) 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.
16.4 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.
16.5 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 unless such rights are expressly provided for in the Agreement.
16.6 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.
16.7 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.
16.8 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.
16.9 Variation. No variation or amendment to the Agreement shall be valid or effective unless in writing and signed by authorised representatives of each party hereto. Amicorp shall have the right to make any changes to these Terms of Business.
16.10 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.
16.11 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).
16.12 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.
16.13 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 Amicorp these Terms of Business (“Terms of Business”) will be deemed to be incorporated in all agreements, arrangements, proposals and engagements in any form entered into by Amicorp with the Principal and/or the Entity, and are 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.
Capitalised terms referred to herein and not defined shall have the meaning and interpretation as provided in the Agreement.
“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 for Services, 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 under the Agreement in connection with the Entity.
Personal Data Protection
ARTICLE 1. Definitions
Unless otherwise specified, the terms used in this Schedule 1 (Personal Data Protection) shall have the same definition as in the Agreement and in the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council 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, and repealing Directive 95/46/EC (the “GDPR”).
“Amicorp” is the service provider engaged by the Principal under the Agreement to provide the Services to the Entity.
The ”Principal” is the direct, indirect, legal or beneficial owner of the title to, and all rights and interest in the shares [units / quotas / ownership rights / participations] of the Entity.
The “Entity” is the beneficiary of the Services provided by Amicorp.
The “Principal’s Personal Data” means Personal Data pertaining to the Principal whose processing has been instructed and authorised by the Principal or those Personal Data provided to Amicorp either by the Principal or by the Entity.
ARTICLE 2. Principal’s commitment
The Principal acknowledges and undertakes to comply with the laws and regulations governing the processing of Personal Data, including, but not limited to, the GDPR (the “Data Protection Laws and Regulations”), especially, but not limited to, data retention periods, information of the Data Subjects concerned and the lawfulness of processing. The Principal undertakes and guarantees to Amicorp that it has informed the Data Subjects of the processing of their Personal Data under the Agreement and that there is an adequate legal basis for such processing. The Principal shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which the Principal acquired Personal Data. The Principal shall hold Amicorp completely harmless in case of any claim by a third party in this respect.
ARTICLE 3. Amicorp as a Data Controller
Each of the Parties acts as an independent Data Controller for its own activities such as complying with commercial and other applicable legal duties and obligations (including anti-money laundering, corporate and tax reporting), fulfilling requests from competent authorities, etc. When processing Personal Data as Data Controller, Amicorp undertakes to comply with its Privacy Notice, which can be found at: https://www.amicorp.com/privacynotice.
ARTICLE 4. Amicorp as a Data Processor
Amicorp also acts as a Data Processor for the Principal for the provision of the Services by Amicorp pursuant to the Agreement (the “Services”) as detailed in this Article 4.
4.2 Description of the Processing
|Nature of the operations carried out||Collection, analysis, distribution and archiving of the personal data for the provision of the Services|
|Category(ies) of Personal Data processed||Identification data (name, surname, passport, social security number), contact details (postal address, email address, telephone number), financial data (assets, bank account number, TIN, tax residence), professional data (mandate, conflict of interest), political opinion (PEP), criminal convictions, nature of the interests held, information that may be included in letters receive by the Principal at the registered office.|
|Category(ies) of Data Subjects||Each of the ultimate beneficial owners (including his/her personal advisers, representatives, successors) and each of the natural persons acting as the Company’s shareholder, director, officer, agent, intermediary, point of contact and advisor.|
4.3 Conditions of the Processing
Amicorp shall treat Personal Data as Confidential Information as per the terms of the Agreement, and shall only process Personal Data on behalf of and in accordance with the Principal’s documented instructions for the following purposes: (i) processing in accordance with the Agreement; (ii) processing to comply with other documented reasonable instructions provided by the Principal (e.g., via email) where such instructions are consistent with the terms of the Agreement. Instruction from the Principal can be provided to Amicorp orally provided that such instruction is recorded or subsequently confirmed in writing by letter, facsimile, email or any other similar means of communication. For the avoidance of doubt, the Principal’s instructions for the processing of Personal Data shall comply with Data Protection Laws and Regulations and Amicorp shall not be under any obligation to verify compliance by the Principal with Data Protection Laws and Regulations. However, if Amicorp considers that an instruction of the Principal might infringe such Data Protection Laws and Regulations or other Union or Member State data protection provisions, it is entitled to refuse to execute such instruction. In such situation, Amicorp will immediately inform the Principal.
Amicorp shall implement appropriate technical and organisational security measures to protect the Personal Data against accidental or unlawful destruction, loss or alteration and against unauthorised disclosure, abuse or other processing in violation of the provisions laid down in the Data Protection Laws and Regulations. Upon prior written request of the Principal, Amicorp will provide a copy of the latest version of the relevant technical and organisational security measures. Furthermore, Amicorp shall – upon the Principal’s written request – give the Principal sufficient information to ensure that Amicorp has implemented the appropriate technical and organisational security measures.
4.5 Amicorp personnel
Amicorp shall ensure that its personnel engaged in the processing of Personal Data is informed of the confidential nature of the Personal Data, have received appropriate training on their responsibilities and have executed written confidentiality agreements. Amicorp shall ensure that such confidentiality obligations survive the termination of Amicorp personnel’s employment or engagement. Amicorp shall ensure that Amicorp personnel’s access to Personal Data is limited to only the relevant personnel performing Services in accordance with the Agreement.
Upon the Principal’s request, and at the Principal’s cost, Amicorp shall provide the Principal with reasonable information, cooperation and assistance needed for it to demonstrate compliance with the obligations laid down in this Schedule 1 (Personal Data Protection). Amicorp will provide assistance to the Principal for it to carry out a data protection impact assessment related to the Principal’s use of the Services, to the extent the Principal does not otherwise have access to the relevant information, and to the extent such information is available to Amicorp. Amicorp shall provide reasonable assistance to the Principal in the cooperation or prior consultation with the supervisory authority in the performance of its tasks relating to this section, to the extent required under the GDPR. Within the meaning of Article 28 of the GDPR, Amicorp allows for and contributes to audits, including inspections, conducted by the Principal or another auditor mandated by the Principal upon twenty (20) calendar days’ prior written notice. Amicorp will be able to oppose to the auditor appointed by the Principal if Amicorp considers that there is a competitive risk with regard to the identity of the auditor proposed. In such a case, Amicorp may propose a new auditor to the Principal until the Parties reach an agreement on this point. Such audits, including inspections, will be performed at the Principal’s costs. Amicorp also assists the Principal in ensuring compliance with the notification of a Breach to the supervisory authority and the communication of a Breach to the Data Subject(s) where appropriate under the GDPR – it being reminded that it is the Principal’s responsibility to perform such notification and communication.
4.7 Data Subject Request
Amicorp shall, to the extent legally permitted, promptly notify the Principal if Amicorp receives a request from a data subject to exercise his/her rights as specified under the Data Protection Laws and Regulations (a “Data Subject Request”). Taking into account the nature of the processing, Amicorp shall assist the Principal by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Principal’s obligation to respond to a Data Subject Request. In addition, to the extent the Principal, in its use of the Services, does not have the ability to address a Data Subject Request, Amicorp shall upon the Principal’s request provide commercially reasonable efforts to assist the Principal in responding to such Data Subject Request, to the extent Amicorp is legally permitted to do so and the response to such Data Subject Request is required under the Data Protection Laws and Regulations. To the extent legally permitted, the Principal shall be responsible for any costs arising from Amicorp’s provision of such assistance.
4.8 Breach of Principal’s Personal Data
Amicorp maintains security incident management policies and procedures and shall, notify the Principal without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data transferred by the Principal to Amicorp in the course of the provision of the Services (the “Principal’s Personal Data”) processed by Amicorp or its subsequent processor of which Amicorp becomes aware (a “Breach”). Amicorp shall make reasonable efforts to identify the cause of such Breach and take those steps as Amicorp deems necessary and reasonable to remediate the cause of such Breach to the extent the remediation is within Amicorp’s reasonable control. The obligations herein shall not apply to incidents that are caused by the Principal.
4.9 Use of Subsequent Processor
The Principal acknowledges, agrees that and gives its prior general authorisation:
(a) for any entity (the “Amicorp Affiliate”) within the group of companies to which Amicorp belongs (the “Amicorp Group”) to be retained as subsequent processors; and
(b)for Amicorp and Amicorp Affiliate respectively to engage third-party subsequent processors in connection with the provision of the Services.
Amicorp and Amicorp Affiliate have entered into a written agreement with each subsequent processor containing data protection obligations not less protective than those in this Schedule 1 (Personal Data Protection) with respect to the protection of Personal Data to the extent applicable to the nature of the Services provided by such subsequent processor. For clarity purposes, staff contractually linked to a processor or subsequent processor that have demonstrably been bound to respect the confidentiality as per the Agreement shall not be considered as a subsequent processor in terms of this Schedule 1 (Personal Data Protection).
To the extent required under Data Protection Laws and Regulations, a list of subsequent processors shall be made available by Amicorp and Amicorp Affiliates upon Principal’s request. If a subsequent processor is not an Amicorp Affiliate (i.e. not forming part of the Amicorp Group), then Amicorp undertakes to provide a thirty (30) days prior written notification to the Principal requesting the authorisation of the new subsequent processor to process Personal Data in connection with the provision of the applicable Services. The Principal may object to Amicorp’s use of a new subsequent processor by notifying Amicorp promptly in writing within ten (10) days after the notification set out in the previous paragraph. In the event the Principal objects to a new subsequent processor, not forming part of the Amicorp Group, then Amicorp will use reasonable efforts to make available to the Principal a change in the Services or recommend a commercially reasonable change to the Principal’s configuration or use of the Services to avoid processing of Personal Data by the new subsequent processor objected-to by the Principal without unreasonably burdening the Principal. If Amicorp is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) calendar days, the Principal may terminate the applicable Services under the Agreement with respect only to those Services which cannot be provided by Amicorp without the use of the objected-to new subsequent processor by providing written notice to Amicorp.
Amicorp shall be liable for the acts and omissions of its subsequent processors to the same extent Amicorp would be liable if performing the Services of each subsequent processor directly under the terms of this Schedule 1 (Personal Data Protection), except as otherwise set forth in the Agreement.
4.10 Transfer of Personal Data Outside the European Union
Amicorp is allowed to transfer personal data to a country outside of the European Economic Area providing that (i) such country is covered by an adequacy decision or (ii) Amicorp has executed the Standard Contractual Clauses as adopted by the European Commission (the “SCCs”) with the recipient of such personal data, to the extent such transfers are subject to such Data Protection Laws and Regulations. Without prejudice to the above provisions, Amicorp may transfer personal data to a third country or an international organisation where such transfer is required by Union or Member State law to which Amicorp is subject. In such a case, Amicorp shall inform the Principal of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
4.11 Duration of the Processing
At the Principal’s written request at the termination of the Agreement, Amicorp shall return the Principal’s Personal Data to such Principal and, to the extent allowed by applicable law, delete the Principal’s Personal Data in accordance with Amicorp’s internal procedure, unless the Principal’s Personal Data are essential for Amicorp to provide proof of the due performance of its contractual obligations or unless it can demonstrate there is a legal or regulatory obligation which authorises it to retain all or part of the Principal’s Personal Data for a longer period. The Parties acknowledge that Principal’s Personal Data provided in electronic format (e.g. e-mail) may be copied by Amicorp as part of its back-up procedures, such copies will be retained in accordance with Amicorp’s data retention policy for its electronic back-up and Amicorp undertakes that it shall destroy or return such copies upon request of the Principal unless it can demonstrate that there is a legal or regulatory obligation which authorises it to retain all or part of the Personal Data for a longer period or where the retention of the copies is necessary for Amicorp to provide proof of the due performance of its contractual obligations or where such copies are necessary to ensure the integrity of Amicorp’s information system.
ARTICLE 5. Definitions
5 Data Protection Officer
Staff (directors, officers, employees) within the Amicorp Group processing Principal’s Personal Data on a regular basis have appointed a Data Protection Officer. The appointed person may be reached at firstname.lastname@example.org.