Terms of Business

Introduction

 

All Applicants and/or the Managed Entity as defined below applying for Services to be provided by the Trustee should read these GTCs carefully. These GTCs will be deemed to have been agreed by the Applicant and/or Managed Entity by the acceptance of any Services provided by the Trustee.

 

Copies of the current GTCs and current scales of fees may be inspected at the registered office of the Trustee during normal business hours.

 

The Trustee is authorised to revise or alter the GTCs and scales of fees referred to in Clause18 from time to time without providing advance notice. The Trustee will notify the Applicant and/or the Managed Entity by ordinary post, or at its option by such other means as the Trustee and the Applicant/Managed Entity habitually communicate, of any changes which the Trustee considers to be material as soon as reasonably practicable after their introduction. All Applicants and/or Managed Entities shall be bound by any revision of the GTCs and/or scales of fees as and when a copy of the revised document becomes available for inspection at the registered office of the Trustee.

 

Where the Trustee and the Applicant and/or any Managed Entity enters into an agreement relating to the Services which does not expressly replace these GTCs in their entirety, in the event of any conflict between the terms of the agreement and these GTCs the terms of the agreement shall prevail.

 

 

1.     Definitions and Interpretation

 

1.1.   In these GTCs unless the context otherwise requires words importing the singular shall include the plural and the masculine gender shall include the feminine and the neuter and vice versa in each case and words importing persons shall include bodies of persons whether corporate or unincorporate.

 

1.2.   Reference to the Trustee shall include reference to the Trustee in whichever capacity it may be acting and to any company beneficially owned by or affiliated with the Trustee, and to their subsidiaries, directors, employees and officers, wheresoever each and any of them may be situated.

 

1.3.   To the extent that any release or indemnification or other right in these GTCs enure for the benefit of a person who is not a party to this agreement, the Trustee declares that it holds the benefit of such release, indemnification, or other right on trust for the benefit of that person.

 

1.4.    These GTCs apply to all business undertaken by the Trustee of whatever nature whether as trustees executors corporate managers, directors, administrators, council members or guardians of foundations or otherwise.

 

1.5.   Unless otherwise defined, terms in capital letters used in these GTCs shall bear the meaning described hereafter:

 

Advisors”                                 means any external advisors including but not limited to lawyers, accountants, brokers, bankers and any other advisors.

 

Agents”                                    means any bankers, agents, correspondents, managers or any colleagues thereof, employed in any jurisdiction.

 

Applicant”                               means each and every person or organization to whom the Trustee provides Services (including for the avoidance of doubt the settlor of any trust and the founder of any foundation) and furthermore shall include, in the case of an individual, his heirs, personal representatives and assigns and, in the case of a body corporate, its successors and assigns. In cases where the Applicant is more than one person, this means such persons together jointly and severally, unless otherwise agreed in writing with the Trustee, as well as the heirs, personal representatives and assigns of each of them.

 

Authorised Person”            means the Applicant and/or the Managed Entity and/or any person company or other entity from whom the Trustee is authorised or instructed by the Applicant and/or the Managed Entity to accept directions recommendations or advice whether such authorisation shall be general or limited and whether the Trustee shall be acting as trustee, executor, corporate manager, administrator, council member, guardian of foundations or otherwise.

 

GTCs”                                        means these terms and conditions as amended from time to time.

 

 “Managed Entity”                 means any body corporate, trust, foundation, partnership, association or other entity (corporate or unincorporated) in respect of which Services are provided by the Trustee on request of the Applicant.

 

Relationship Centre”           has the meaning set out in Clause 11.

 

scale of fees”                          means the scale of fees issued from time to time by the Trustee in respect of the fees of the Trustee for the Services

 

Services”                                 means any acts done or to be done or performed for and/or on behalf of the Applicant and/or the Managed Entity by the Trustee, which content is defined in the instructions given by the Applicant to the Trustee including without limitation the provision of fiduciary services, trustees, directors, shareholders, qualified members, management and accountancy services and the administration of any such Managed Entity

 

Trustee”                                   means Highvern Trustees Limited.

 

 

1.6.   Clause headings in these GTCs are inserted for convenience only and shall not affect the construction of these GTCs.

 

1.7.   These GTC’s shall not exclude any practice or custom or implied term in favour of the Trustee.

 

2.     Identification and Due Diligence

 

2.1.   On receiving an application for Services the Trustee will require proof of the identity of each individual Applicant by the production of valid identification satisfactory to the Trustee and will require with respect to each corporate Applicant and/or Managed Entity appropriate constitutional documents and resolutions satisfactory to the Trustee. The Trustee will also require the Applicant and/or Managed Entity to provide verification of his or her address and of the source of funds and wealth, satisfactory to the Trustee, and such other information or documents as are necessary to comply with all law and regulations applicable to the Trustee. The Applicant agrees that the Trustee may, at its entire discretion and without liability, suspend the Services until satisfactory details have been supplied, terminate the engagement with the Applicant or Managed Entity with immediate effect and/or decline the Applicant and/or Managed Entity’s application for any Services.

 

2.2.   The Applicant and/or the Managed Entity shall comply, at any time and/or at first request of the Trustee, with the Trustee’s requirements in respect of the Applicant’s and/or the Managed Entity’s due diligence and shall provide to the Trustee all information and documentation as may be requested to enable the Trustee to comply with such requirements.

 

2.3.   The Applicant acknowledges that the Trustee may be required by laws or regulations applicable to it to report information or other matters relating to the Applicant and that such report is not to be treated as a breach of any restriction upon the disclosure of information imposed by law, regulation or contract upon the Trustee.

 

2.4.   The Applicant hereby releases the Trustees from all claims for any loss that it may suffer as a result of any delay in providing the Services or suspension of Services or termination of the Services due to insufficient due diligence, identity information and verification.

 

3.     Joint Applicants

 

3.1.   All rights interest and entitlement of joint Applicants in connection with joint Services shall be held by them as joint tenants and the Trustee is authorised to rely upon and act in accordance with the instructions and requests of any or all of the joint Applicants until otherwise notified to and acknowledged by the Trustee in writing.

 

3.2.   Joint Applicants (or their survivor) shall notify the Trustee immediately upon the death of one of their number and the Trustee shall be entitled to call for and rely upon such evidence (if any) of death as it may deem fit. The Trustee shall deal with joint Services in accordance with the instructions of the surviving Applicant, or failing such instructions in accordance with the previous instructions that were current at the date of death of the joint Applicant governing the operation of the Services.

 

3.3.   The liability of joint Applicants to the Trustee shall be joint and several.

 

3.4.   A notice or communication served by the Trustee on any one of the joint Applicants shall constitute effective service on all the joint Applicants.

 

3.5.   The Trustee shall treat any conflicting instructions received by Joint Applicants as a conflicting claim and the provision of Clauses 15.1 and 15.2 shall apply mutatis mutandis.

 

4.     Intellectual Property

 

4.1.   Subject to any applicable data protections requirements, all correspondence files and records (other than statutory corporate records) and all information and data held by the Trustee on any computer system is the sole property of the Trustee for its sole use and the Applicant and/or the Managed Entity shall have no right of access thereto or control thereover.

 

5.     Trusteeships and Executorships

 

5.1.   The terms of any trusteeship, executorship or foundation business undertaken by the Trustee are primarily governed by the terms of the relevant trust instrument, will, foundation charter and regulations or constitutional documents and the relevant governing law; however the provisions of these GTCs shall apply so long as the same shall not be inconsistent therewith.

 

5.2.   No collateral contract or any obligation upon the Trustee shall arise by reason only that any settlor, testator, founder or other person shall before or after the appointment of the Trustee have expressed wishes regarding the exercise by the Trustee of its powers or discretions.

 

6.     Management

 

6.1.   Management services will be provided by the Trustee pursuant to the relevant agreement for such services, however the provisions of these GTCs shall apply so long as the same shall not be inconsistent therewith.

 

6.2.   In no event shall the Applicant or any other Authorised Person have any authority or purport to have any authority on behalf of any Managed Entity for any purpose whatsoever save to the extent, if any, that the Applicant or Authorised Person shall be a director or officer or hold any position conferring him power to act on behalf of the Managed Entity and shall properly derive its authority from that office or shall be expressly authorised by the Managed Entity.

 

 

 

7.     Authority and liability

 

7.1.   The Trustee shall be entitled to rely upon or act in accordance with any request, directions, recommendations or advice made or purportedly made by an Authorised Person, which may be transmitted to the Trustee (whether by telephone, telex, facsimile or email); and the Trustee shall have no further duty to enquire as to the authority or identity of the Authorised Person passing on any such request, regardless of the circumstances prevailing at the time that the request is passed to the Trustee, provided that such Authorised Person has identified himself to the Trustee according to the Trustee’s policy for receipt of information as the same may be in force at the relevant time. The Trustee shall, notwithstanding any error, misunderstanding or lack of clarity in the terms of any such request, be entitled to treat the request as the request of the Applicant and/or the Managed Entity and as fully authorised by and binding upon the Applicant and/or the Managed Entity and its heirs and assigns.

 

7.2.   The Trustee shall be entitled to rely upon any advice obtained from a professional person or a person reasonably believed to be competent to give the advice; and the Trustee shall not be responsible in the absence of fraud, wilful misconduct or gross negligence on its part for anything done or omitted to be done in reliance upon such advice. If the Trustee shall determine to obtain any such advice it shall not be liable for declining to act pending receipt of such advice.

 

7.3.   Neither the Trustee, nor its directors, employees, Agents or Advisors shall incur any liability for the consequences of errors, alterations, damages, losses, delays or misunderstandings in connection with the use of means of communication such as mail, telex, telephone, facsimile, emails and any other means of transmission or transport except in the event of fraud, wilful misconduct or gross negligence on the part of the Trustee.

 

In particular, neither the Trustee, nor its directors, employees, Agents or Advisors shall incur any liability for any failure to comply wholly or partly with any instruction, request or advice which is not in writing and shall not be responsible for any non-receipt thereof or any errors or ambiguity therein or any lack of authority on the part of the person giving or making the same. Without prejudice to paragraph 7.1, the Trustee may request, in its absolute discretion, the Applicant and/or the Managed Entity and/or the Authorised Person to confirm in writing any instruction and/or request transmitted by any means to the Trustee prior to any consequential action and/or absence of action by the Trustee and where the Trustee does not believe that the person giving instructions is duly authorised or where the Trustee is given instructions that it believes are unclear or contradictory, it may refuse to act upon such instructions until it receives evidence to its satisfaction as to the true meaning of the instructions or the identity of the person giving instructions and none of the Trustee, its directors, employees, Agents or Advisors shall incur any liability for such refusal to act or delay in acting.

 

7.4.   In consideration for the Trustee dealing with Agents as aforesaid, the Applicant for himself and his personal representatives, heirs and assigns and/or the Managed Entity for itself, its successors and assigns shall indemnify the Trustee, its directors, employees, Agents or Advisors and keep the Trustee, its directors, employees, Agents or Advisors indemnified against all losses, claims, actions, proceedings, damages, costs and expenses (including legal costs) incurred or sustained by the Trustee, its directors, employees, Agents or Advisors of whatever nature and howsoever arising (except to the extent of its own fraud wilful misconduct or gross negligence).

 

7.5.   If:

7.5.1. any demand is made against any Managed Entity for payment of any sum due including, without limitation, any taxes, duties, fees or other governmental or state impositions and such payment has not yet been made;

7.5.2. the Trustee has not been able to obtain instructions from the Applicant or an Authorised Person in circumstances where, in the Trustee’s opinion, instructions are required in order to take action that it considers necessary;

7.5.3. the Trustee has received instructions from the Applicant or any Authorised Person which, in the Trustee’s opinion, are or may be illegal or contrary to the interests of the Applicant and/or any Managed Entity or which may lead to any of the Trustee, its directors, employees, Agents or Advisors incurring liability (including, without limitation, personal liability); or

7.5.4. in meeting its disclosure obligations under Clause 24, the Trustee is required to suspend the provision of any Service or any aspect thereof or otherwise decline or delay the implementation of any instruction given by or on behalf of the Applicant or any Authorised Person.

Then the Trustee has specific authority and may, as it deems necessary, either take such action on behalf of the Managed Entity or otherwise as it thinks fit (including, without limitation, seeking professional advice at the cost of the Applicant and/or the Managed Entity, appropriating the assets and/or funds of the Applicant and/or the Managed Entity to satisfy any demands for payment, winding up the Managed Entity or transferring the assets of the Managed Entity or the assets and/or funds which are the subject of the Services to the Applicant) or take no action whatsoever.

 

7.6.   The Trustee will, as soon as reasonably practicable after taking any action under Clause 7.5, give notice to the Applicant of such action or inaction having been taken. The Applicant acknowledges that the Trustee may not be able, and shall not be compelled save by any court or authority of competent jurisdiction to inform the Applicant of any action or inaction contemplated by Clause 7.5.4.

 

7.7.   None of the Trustee, its directors, employees, Agents or Advisors shall incur any liability for any action or inaction of the Trustee pursuant to Clause 7.5 and Clause 7.6.

 

8.     Forgeries

 

8.1.   Under no circumstances shall the Trustee or any correspondent or agent of the Trustee be liable for failing 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 such instrument document or communication which may prove to have been forged or otherwise invalid.

 

9.     Notices and Communications

 

9.1.   Notices to the Trustee shall be in writing (using the English language) addressed to the party concerned and effective only when actually received at the principal place of business of the Trustee. Any communications made outside the Business Hours of the Business Days may be considered as received at the opening of the next Business Day, unless the Applicant and/or the Managed Entity receives personally an acknowledgement of receipt by the Trustee. For the purpose of this clause, “Business Hours” shall mean from 9:00 to 17:00 on any Business Day and “Business Day” shall mean any day of the week, from Monday to Friday, except for official holidays at the location of the Trustee and/or the place for rendering of Services.

 

9.2.   Notices and other communications or correspondence from the Trustee to the Applicant and/or the Managed Entity shall be properly dispatched by the Trustee when sent to the address nominated by the Applicant and/or the Managed Entity from time to time in writing for that purpose. The date of dispatch shall be presumed to be the date appearing on the Trustee’s copy of such notice or other communication or correspondence and any notice (a) delivered personally shall be deemed to have been given at the time of such delivery; (b) sent by ordinary post shall be deemed to have been given 72 hours after posting; (c) sent by airmail shall be deemed to have been given seven days after posting; (d) sent by fax shall be deemed to have been given at the time of despatch; and (e) sent by electronic mail shall be deemed to have been given at the time of sending.

 

9.3.   Subject to Clause 9.5, the Trustee is authorised to send any communications in writing, irrespective of whether such communications contain confidential data relating to the Managed Entity, and to continue doing so until the Trustee has been advised to the contrary by the recipient of the notice or other communications or correspondence. The Trustee accepts no responsibility as to the integrity, authenticity, completeness or confidentiality of electronic mails sent or received or for any delay in receipt or non receipt. It is hereby acknowledged that electronic mails sent via the internet are not secure, that information may become known to third parties; and that electronic mails may be read, modified or intercepted and may cross borders even where sent and received within the same country. None of the Trustee, its directors, employees, Agents or Advisors shall incur any liability for any breach of confidentiality, delay, interception, loss, failure, computer virus or data corruption and shall be entitled to be indemnified against any resulting liability.

 

9.4.   The Applicant and/or the Managed Entity undertakes to inform the Trustee immediately in writing of any change in address, contact details, personal situation, professional situation, and/or any other relevant information communicated to the Trustee in connection with the relationship with the Applicant and/or the Managed Entity. The Applicant also undertakes to inform the Trustee immediately in writing of any information that may affect the relationship with the Applicant and/or the Managed Entity, such information being connected or not to any information previously transmitted to the Trustee.

 

9.5.   Upon the written request of the Applicant and/or the Managed Entity, the Trustee may in its full discretion and at the Applicant’s and/or the Managed Entity’s risk hold all notices and other communications or correspondence with the Applicant and/or the Managed Entity for collection by the Applicant and/or the Managed Entity and continue to hold the same until they are collected or other written instructions are received from the Applicant and/or the Managed Entity. Such held notices communications or correspondences are considered delivered on the date appearing on the same. The Trustee may, nevertheless, communicate with the Applicant directly via transmission channels used or stated by the client or his proxy, i.e. mail, telephone, fax or electronic mail.

 

9.6.   Each Applicant and/or the Managed Entity shall indemnify the Trustee, its previous and current directors, previous and current employees, Agents and Advisors in respect of all costs, losses and liabilities incurred by the Trustee, its directors, employees, Agents and Advisors in complying with the Applicant’s and/or the Managed Entity’s request or instruction under 9.5, except in the event of fraud, wilful misconduct or gross negligence of the Trustee, its directors, employees, Agents and Advisors as the case may be.

 

 

 

 

10.   Exculpation and Indemnity

 

10.1. The Applicant and/or the Managed Entity undertakes at all times to hold the Trustee, its directors, employees, former directors and employees, Agents and Advisors harmless and to indemnify them to the greatest extent permitted by law against all actions, suits, proceedings, claims, demands, costs, expenses and liabilities whatsoever which may arise or accrue or be taken, commenced, made or sought from or against the Trustee or its directors, employees and Agents in connection with the Applicant and/or the Managed Entity or arising from the provision of the Services or any of them except as may arise from some fraud, wilful misconduct or gross negligence irrespective that there may be some defect in any appointment or qualification of authority. For the avoidance of doubt, this indemnity shall continue in force notwithstanding the termination of the relationship between the Applicant and/or the Managed Entity and the Trustee.

 

10.2. In addition to the provisions in these GTCs in connection with the limitation of liability of the Trustee, the Applicant and/or the Managed Entity agrees that none of the Trustee, its directors, employees, former directors and employees and Agents shall be liable towards the Applicant and/or the Managed Entity, except in the case of fraud, wilful misconduct or gross negligence for any loss or damage of whatsoever nature including but not limited to any indirect or consequential loss or damage suffered by such Applicant and/or Managed Entity out of or in connection with the Services, with the intent that any and all liability shall be excluded to the greatest extent permitted by law.

 

10.3. For the provision of the Services to the Applicant and/or the Managed Entity with the assistance and/or through any Advisors, Agents and/or any third party, the Trustee will not endorse or be in any way responsible for any liability towards the Applicant and/or the Managed Entity for the activity performed by such Advisors, Agents, and/or any third party for the benefit of the Applicant and/or the Managed Entity. Furthermore, the Applicant and/or the Managed Entity are hereby informed that the provision of such assistance by Advisors, Agents, and/or any third party shall be subject to the relevant general terms and conditions and/or other contractual documents available upon request of the Applicant and/or the Managed Entity to the relevant Advisors, Agents, and/or any third party.

 

10.4. The Applicant and/or the Managed Entity is hereby informed that the Trustee, its directors, employees, Agents and/or Advisors may deliver, from time to time, information and advice that may contain judgments and estimates and therefore constitute forward-looking statements, which involve significant risks and uncertainties. As the results may differ materially from those contained or implied in such information and advice, for a variety of risk factors that are beyond the Trustee’s, its directors’, employees’, Agents’ and/or Advisors’ control, the Trustee, its directors, employees, Agents and/or Advisors may not be liable for such difference of results.

 

10.5. All transfers and transmissions of funds, assets or documents are made at the risk of the Applicant and/or any Managed Entity. The Trustee shall not be liable for any loss, damage or delays howsoever caused which is not directly caused by its gross negligence.

 

11.   Agents and Relationship Management

 

11.1. The Trustee may use the services of Agents to perform the Services undertaken by the Trustee or otherwise in connection with any business of the Applicant and/or the Managed Entity. The Trustee may use Agents in its sole opinion and absolute discretion. Should this occur, the Applicant and /or the Managed Entity accepts, individually or jointly and severally, as the case may be, to discharge and/or advance to the Trustee the entire amount of any costs and/or fees in connection with the Agents.

 

11.2. Where the appointment of Agents by the Trustee has been made upon the instruction, direction, recommendation or advice or with the consent of an Authorised Person such Agents shall be deemed to be acting for the Applicant and/or Managed Entity; and the Trustee shall not be responsible or liable to the Applicant and/or Managed Entity or any third party for any act or omission lawful or unlawful of such Agent provided that the Trustee shall have no actual knowledge of dishonesty.

 

11.3. The Applicant hereby agrees that, notwithstanding any confidentiality requirement under law, contract or otherwise, the Trustee may provide any information documents and data in connection with the Services, Applicant and/or Managed Entity and transactions concerning the Services to Agents in any jurisdiction, for the purpose of processing information relating to the Services, storing or providing contingency backup of data, providing legal, financial, credit, custody, monitoring or administrative services or for any other proper banking, investment, trust, regulatory, marketing or compliance purpose.

 

11.4. The Applicant hereby agrees that if the Applicant requests (whether in writing, orally or by conduct) that the Trustee deal with an Authorised Person through any other firm or company (Counterparty) it shall be on the basis that:

 

11.4.1.   the Trustee may, notwithstanding any confidentiality requirement under law, contract or otherwise deliver and disclose to the Counterparty and its officers and employees such information documents and data concerning the Services or Authorised Person as the Counterparty may request or require from time to time; and

11.4.2.   the Trustee may rely upon or act in accordance with any request made, or purportedly made, by the Authorised Person, which may be transmitted to the Trustee by telephone, telex, facsimile or electronic mail by the Counterparty, and the Trustee shall have no duty to enquire as to the authority of the Counterparty. The Trustee shall be entitled to treat the request as the request of the Applicant and as fully authorised and binding upon the Applicant and his heirs and assigns.

 

11.5. Where the Trustee is dealing with a Counterparty the Applicant acknowledges and agrees that confidential information documents and data concerning the Applicant, the Managed Entity and Authorised Persons may be made generally available and that the Counterparty shall be entitled to maintain such information, documents and data in the country where the Counterparty is located and, where required, to disclose the same to auditors and regulatory authorities.

 

11.6. In consideration of the Trustee dealing with a Counterparty as aforesaid, the Applicant, its personal representatives, heirs and assigns shall indemnify the Trustee and keep the Trustee indemnified against all losses, claims, actions, proceedings, damages, costs and expenses (including legal costs) incurred or sustained by the Trustee of whatever nature and howsoever arising (except to the extent of its own fraud, wilful misconduct or gross negligence).

 

11.7. Any request referred to in sub-Clause 11.4 shall remain in force until such time as the Trustee receives written notice of termination from the Applicant, save that any such termination shall not release the Applicant, its personal representatives, heirs or assigns from any liability in respect of any act performed by the Trustee in accordance with such request prior to receipt of such notice.

 

12.   Advisors

 

12.1. Any Services that may be provided by the Trustee to the Applicant and/or the Managed Entity may require from time to time the assistance of Advisors, in the sole opinion and absolute discretion of the Trustee. Should this occur, the Applicant and/or the Managed Entity accepts, individually or jointly and severally, as the case may be, to discharge and/or advance to the Trustees the entire amount any costs and/or fees in connection with such Advisors.

13.   Conflicting Interests

13.1. The Applicant acknowledges that the Trustee may have interests conflicting with those of an Applicant and/or a Managed Entity, in particular when offering similar Services to other Applicants and/or Managed Entity or when investing in financial products, which are promoted, managed or advised by the Trustee or another entity, or for which the Trustee may receive commission, fees or other advantages.

 

13.2. The Trustee (notwithstanding the existence of a trusteeship or other fiduciary relationship) shall be excluded from any rule of law or implied term prohibiting dealings by fiduciaries or requiring fiduciaries to account for profits or other gains. The Trustee may deal freely as it would with any other Applicant and/or Managed Entity as banker, broker or otherwise with any trust, estate, managed company or other entity and upon such terms as to remuneration and otherwise as would apply for any other Applicant and /or Managed Entity.

 

13.3. If the Trustee becomes aware or is notified of a conflict or possible conflict of interest, it shall (as soon as reasonably practicable after it becomes aware of such conflict or possible conflict of interest) notify the Applicant and, if possible, procedures will be put in place to ensure confidentiality and independence of advice.

 

14.   Disclaimer on Advice and other Services

 

14.1. It shall at all times be the sole responsibility of the Applicant to obtain such advice regarding suitability to the Applicant’s circumstances of the Services provided by, or arrangements with, the Trustee in relation to the Applicant and/or any Managed Entity and as to taxation or any other matter of law within or without the jurisdiction as may be appropriate or desirable; and under no circumstances shall the Trustee have any responsibility for the efficacy of any arrangement established by or upon the instructions of the Applicant or an Authorised Person.

 

14.2. The Applicant undertakes and confirms to the Trustee that he has already obtained or will as soon as possible obtain all necessary tax and other professional advice relating to the proposed use, objectives and consequential suitability of the Services (including without limitation the establishment of any Managed Entity and its proposed activities) and that the Applicant and any Managed Entity will comply with all applicable laws and regulations in all relevant jurisdictions. The Applicant acknowledges that he has not received any legal, tax or investment advice from the Trustee and will continue to acquaint himself with any legal and tax obligations he may continue to have during the time the Services are provided.

 

14.3. The Trustee in its entire discretion may require evidence where it deems this necessary that the Applicant has obtained legal, fiscal, regulatory or other professional advice in connection with his prospective business with the Trustee. Furthermore it is the sole responsibility of the Applicant to assure himself that such advice is adequate for his needs and the Trustee accepts no liability or responsibility for the adequacy of such advice.

 

14.4. The Trustee will not be responsible for complying with any reporting or filing requirements (whether for tax purposes or otherwise) in relation to the Applicant and/or the Managed Entity other than where the Trustee has a regulatory or statutory obligation or has expressly agreed to do so in writing.

 

15.   Court Applications

 

15.1. If the Trustee shall consider that it is, or may be or become, subject to conflicting claims in respect of the Services, or any other property or assets, the Trustee 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 of competent jurisdiction.

 

15.2. The Trustee shall be entitled, without liability to the Applicant and/or Managed Entity pending determination of any such conflicting claim, to refuse to provide or deliver to the Applicant and/or Managed Entity, all or any of the Services or any other property or assets 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. The Trustee shall be entitled to charge the Applicant and/or Managed Entity with the amount of any legal or other costs incurred by the Trustee in safeguarding its interests as aforesaid.

 

16.   Insurance Protection

 

16.1. The Trustee may require that a Managed Entity to which it provides Services purchases suitable professional and/or directors' and officers' and/or trustees' insurance cover for the Services which the Trustee considers appropriate for risks which may affect the Services and include the Trustee under the terms of such policy and the premiums for such insurance coverage may be charged by the Trustee to the Applicant and/or the Managed Entity.

 

 

17.   Rights of Lien Pledge Set-Off and Combination

 

17.1. In the event of non-payment of all or any part of any fees, disbursements or expenses due to the Trustee or which the Trustee is liable to pay on behalf of the Applicant and/or any Managed Entity or in respect of which Applicant and/or any Managed Entity becomes liable to the Trustee in any other manner, the Trustee shall have a lien over, or the right not to release from the possession or control of the Trustee, all or any documents, funds or assets, including funds and/or assets held on behalf of the Applicant and/or the Managed Entity or to the order of the Applicant and/or the Managed Entity or on behalf of or to the order of any company or other body in common ownership with the Applicant and/or the Managed Entity or otherwise connected or affiliated to the Applicant and/or the Managed Entity in any manner, until such time as all such fees, disbursements, expenses, or liabilities due and payable are discharged. Furthermore, the Trustee is hereby irrevocably authorised by the Applicant and/or the Managed Entity each taken separately, in addition to the right of lien herein and any general lien or similar right to which the Trustee may be entitled by law, to combine or consolidate all or any assets which it holds in custody for the account of the Applicant and/or Managed Entity, either in its own custody or elsewhere, and/or take appropriate security over all or any of these assets and/or to set-off deposits accrued interest or any other assets of the Applicant and/or the Managed Entity (or any of the Applicant and/or the Managed Entity, if more than one) against all claims that the Trustee may have against the Applicant and/or the Managed Entity in course of the business relationship, whether such claims shall be actual contingent several or joint or shall involve differing currencies.

 

17.2. If upon first demand made by the Trustee, the Applicant and/or the Managed Entity (or any of the Applicant and/or the Managed Entity, if more than one) fails to pay or discharge any obligations and liabilities referred to in Clause 17.1 above, or alternatively fails to restore the margin of cover to the Trustee’s satisfaction, the Trustee shall be entitled to sell, realise or otherwise dispose of such assets of the Applicant and/or the Managed Entity (or any other of the Applicant and/or the Managed Entity) at its discretion, and to apply the proceeds of such sale, realisation, or disposal in reduction or discharge of such obligations and liabilities.

 

17.3. If the Applicant has not retained any interest, including any fiduciary interest, in the Managed Entity and its assets, the Trustee is not authorised to combine consolidate and/or set-off assets held in custody for the Managed Entity against any and all claims that the Trustee may have against the Applicant.

 

17.4. The liability of the Applicant and/or Managed Entity under Clause 17.1 shall be unaffected by any arrangements the Trustee may make with the Applicant or the Managed Entity or with any other person that, but for this provision, might operate to diminish or discharge the liability of or otherwise provide a defence to a surety. Without prejudice to the generality of the above the Trustee may, at any time and without reference to the Applicant and/or the Managed Entity give time for payment or grant any other indulgence and give up, deal with, vary, exchange or abstain from perfecting or enforcing any other securities or guarantees held by the Trustee at any time and may discharge any party to them and may release or realise such securities or guarantees or any of them as the Trustee thinks fit and may compound with, accept compositions from and make any other arrangements with the Applicant and/or the Managed Entity or any person liable on bills, notes or other securities or guarantees held or to be held by the Trustee without affecting the liability of the Applicant and/or the Managed Entity under Clause 17.1

 

18.   Remuneration and Compensation

 

18.1. Save where the Trustee has expressly  agreed to the contrary,

 

18.1.1.    its appropriate scale of fees from time to time in force shall be payable for Services

rendered;

18.1.2.    at the Trustee’s sole discretion and without prior notice to or consent of the Applicant

and/or the Managed Entity fees incurred in connection with the Services may be paid and costs expenses and disbursements recovered out of any property or assets of the Applicant and/or the Managed Entity in the hands or under the control of the Trustee from time to time. If the Applicant has not retained any interest, including any fiduciary interest, in the Managed Entity and its assets, the Trustee cannot recover any expense or disbursement of the Managed Entity out of any property or assets held for the account of the Applicant;

18.1.3.    when providing Services to a Managed Entity incorporated in Jersey, the Trustee may, where it is considered appropriate, arrange for the Managed Entity to be listed as an International Services Entity (“ISE”) for the purpose of regulations made pursuant to the Goods and Services Tax (Jersey) Law 2007 as amended from time to time. The Trustee will charge an administration fee in connection with the listing which will be inclusive of the fee paid or payable to the Comptroller of Income Tax in connection with the listing. Additional work in connection with the ISE status for any Managed Entity may be charged on a time spent basis in accordance with its scale of fees from time to time;

 

18.1.4.    where the Trustee is required to undertake activity and/or register and report in order to comply with regulatory and/or tax requirements, the Trustee is entitled to charge appropriate regulatory and tax fees in accordance with its scale of fees from time to time;

 

18.1.5.    the Trustee will charge an administration fee in connection with (a) any activity required to ascertain a Managed Entity's classification under the U.S. Foreign Account Tax Compliance Act (“FATCA”) reporting and withholding regime, (b) the reporting of any reportable accounts maintained in the Managed Entity required by the FATCA regulations, (c) any activity required to ascertain a Managed Entity’s classification under the Common Reporting Standard (“CRS”) and (d) the reporting of any reportable accounts maintained in the Managed Entity required by the CRS regulations. Any additional work required in relation to FATCA and/or CRS may be charged on a time spent basis in accordance with its scale of fees from time to time;

 

18.1.6.    where the Trustee is required to obtain documentation in order to comply with 'know your customer' requirements, the Trustee is entitled to charge regulatory compliance fees in accordance with its scale of fees from time to time.

 

18.2. In addition the Trustee shall be reimbursed for all costs expenses and disbursements in or about the provision of its Services or the exercise of its powers, rights and remedies.

 

18.3. Liability for the fees costs expenses and disbursements of the Trustee shall be that of the Applicant or the Managed Entity and if more than one of the Applicant or the Managed Entity jointly and severally.

 

18.4. The Applicant and/or the Managed Entity agree to pay to the Trustee all trustee fees, maintenance fees and costs annually in advance (which in the event of the termination of the Services during the year shall not be repaid, reimbursed or prorated). Any amount due and payable to the Trustee shall be paid in accordance with the terms of payment to be communicated to the Applicant and/or the Managed Entity. For the avoidance of doubt, should no term of payment appear on a specific document, such payment is to be made immediately.

 

18.5. The Trustee hereby makes known to the Applicant and/or the Managed Entity that in connection with or when executing its Services, it may, from time to time, receive commissions and other advantages from banks, brokers and any other intermediaries or third parties whereby a proportion of the remuneration of such banks, brokers and any other intermediaries or third parties is a retrocession to the Trustee. Such payments will vary depending on the type of financial product as well as on the Services provided, and the Trustee will provide separately to the Applicant and/or the Managed Entity information on their calculation parameters or ranges of amounts. The Applicant and/or the Managed Entity hereby expressly waives his rights on any of the commissions, fees and other advantages to be received by the Trustee and agrees that these will be kept by the Trustee as part of its compensation for the Services. The Trustee will upon written request inform the Applicant and/or the Managed Entity on the amounts which it has received, to the extent that they can be clearly attributed to the relationship with the Applicant and/or the Managed Entity and the related calculation does not require excessive work.

 

18.6. Notwithstanding 18.1 and unless otherwise agreed in writing between the Applicant and the Trustee, the Applicant shall be responsible for the payment of its own costs and expenses (whether incurred directly by any Managed Entity or incurred by the Trustee) including without limitation all taxes, corporate, registration and licence fees payable by the Managed Entity to any legal, governmental or regulatory authorities in any applicable jurisdiction.

 

19.   Termination

 

19.1. All and any obligation to provide Services shall cease without advance notice and specific prior advice upon the Trustee giving notice at its sole and entire discretion, in writing to the Applicant and/or the Managed Entity that, depending on the case at stake, (i) the Applicant and/or the Managed Entity has breached any of the GTCs or failed to observe any of the rules contained in the GTCs or made any declaration under these GTCs that is incorrect, false or misleading; or (ii) any agreement between the Trustee and the Applicant and/or the Managed Entity has terminated for any reason whatsoever; or (iii) in the Trustee’s opinion, the Applicant and/or the Managed Entity cannot meet his payment obligations hereunder or under any agreement between the Applicant and/or the Managed Entity and the Trustee; or (iv) the Trustee becomes aware that the Applicant and/or the Managed Entity and/or the Services are or may become subject in any part of the world to investigation by any judicial regulatory or tax authority or that criminal proceedings are instituted or threatened against the Applicant and/or the Managed Entity or the Services.

 

19.2. In addition, the Trustee is entitled to terminate immediately the relationship with the Applicant and/or the Managed Entity for any reason that the Trustee may consider relevant, in its sole and entire discretion, without advance notice and without providing any reason to the Applicant.

 

19.3. Upon termination pursuant to this Clause for whatever reason, the Trustee, the Agents and any third party involved in the rendering of the Services shall be entitled to receive immediately or to make such retentions and receive such indemnities as it or they may require in respect of (i) the fees and disbursements agreed, (ii) any amount due in connection with the termination, and (iii) any actual or contingent liability that may be assumed by the Trustee in connection with the existence and/or the termination of the relationship with the Applicant and/or the Managed Entity and may take such action as it or they deem necessary to limit such liability. If the Applicant has not retained any interest, including any fiduciary interest, in the Managed Entity or its assets, the Trustee is not entitled to make retentions and request indemnities from the Managed Entity to cover any and all claims incurred in connection with the termination of the Services rendered to the Applicant.

 

19.4. Upon termination pursuant to this Clause for whatever reason, the Trustee shall cause its officers, employees and Agents to resign from all positions held in the performance of the Services and to transfer any and all assets in his custody to the Applicant as his expense.

 

20.   Assignment

 

20.1. The Trustee may assign or transfer the whole or any part of its rights and benefits under the GTCs. For the purpose of any such assignment or transfer, the Trustee may disclose any information in connection with the Applicant and/or the Managed Entity and the Services to any prospective assignee or transferee.

 

20.2. The Applicant and/or the Managed Entity shall not assign or transfer all or any part of his rights, benefits and/or obligations under the GTCs.

 

21.   Severability

 

21.1. If at any time one or more of the provisions of the GTCs becomes invalid, illegal or unenforceable in any respect, that provision shall be severed from the remainder and the validity, legality and enforceability of the remaining provisions of these GTCs shall not be affected or impaired in any way.

 

22.   Data Protection and documents retention

 

22.1. The Trustee is bound by the requirements of applicable data protection legislation. The Trustee shall ensure that any personal data gathered under the terms of the engagement will be processed in accordance with the requirements of current data protection legislation and only for the purpose of providing the Services (and any purpose ancillary thereto) and/or as otherwise permitted by the GTCs.

 

22.2. The Trustee may use personal data for purposes ancillary to providing the Services, including but not limited to the following:

 

22.2.1.    undertaking internal conflict of interest checks, analysing the Trustee’s performance and      

22.2.2.     generating internal financial and marketing reports; and

22.2.3.    assessing legal and financial risks and collecting debts; and

22.2.4.    marketing the Trustee’s services to you in the future, which may involve contacting you or,

where applicable, individuals within your organisation using the contact details that you have provided to us.

 

22.3. The Applicant and/or the Managed Entity agrees that the Trustee shall retain and keep all documents, books and records relating to the Services for the period during which the Services have been rendered and for a period of at least 10 (ten) years after the termination of the relationship with the Applicant and/or the Managed Entity.

 

22.4. The Applicant and/or Managed Entity consents to the holding and processing by the Trustee, its Agents and Advisors and any Counterparties both electronically and manually of all data which the Trustee collects relating to the Applicant and/or Managed Entity for the purposes of providing the Services and for the purposes of the Trustee’s administration and management of its business and for compliance with applicable procedures, laws and regulations. The Applicant and/or Managed Entity also consents to the transfer, storage and processing of such data by the Trustee, its Agents and Advisors and any Counterparties both inside and outside the Island of Jersey.

 

23.   Applicant / Managed Entity Money

 

23.1. Money belonging to the Applicant or any Managed Entity will be maintained at all times separate from the personal funds of the Trustee.

 

23.2. To the extent that tax has to be deducted from interest earned on funds held on behalf of or paid out to any Managed Entity, the Applicant and certain persons connected to them the Trustee will account to the tax authorities for tax deducted. Each of the Applicant and/or the Managed Entity is responsible for seeking its own tax advice in this regard.

 

23.3. On receipt of any monies the Trustee must be satisfied as to the source of these funds. If it has any doubts as to the source of funds the Trustee may be bound by law to notify the relevant authorities.

 

23.4. Neither the Applicant nor any Managed Entity will request the Trustee to take or refrain from taking any action whatsoever in relation to funds or assets or documents of any nature which could in the sole opinion of the Trustee result in a contravention of any law or regulation in force from time to time in Jersey or in any other place whatsoever. The Trustee reserves the right not to comply with any request which in its sole opinion could potentially result in any such contravention or which in its opinion could result in any damage to its reputation or good standing.

 

 

24.   Disclosure

 

24.1. The Trustee will hold in confidence information about the Applicant and/or Managed Entity’s and the Services provided to the Applicant and/or Managed Entity. Disclosure of this information by the Trustee will only be made:

 

24.1.1.    if authorised by the Applicant and/or Managed Entity; or

24.1.2.    pursuant to a court order; or

24.1.3.    if the Trustee is otherwise required or permitted to do so; or

24.1.4.    if disclosure is requested by regulatory or other supervisory authority of the Trustee; or

24.1.5.     where such disclosure is requested by the police or other authorities investigating the

Applicant and/or Managed Entity; or

24.1.6.    to Agents or Advisors of the Trustee; or

24.1.7.    to a competent tax authority of the Trustee or the Applicant and/or Managed Entity; or

24.1.8.    to the auditors of the Trustee; or

24.1.9.    where the Trustee determines that it is in the interests of the Trustee to make disclosure; or

24.1.10. to courts, governments, authorities, regulators or tax authorities where required pursuant to

all information exchange, reporting, disclosure and/or withholding requirements, obligations, arrangements and/or agreements in force and applicable to the Trustee, the Applicant and/or the Managed Entity or otherwise in connection with the Services or where the failure to make such disclosure would, in the opinion of the Trustee, be prejudicial to the  Trustee or its directors and employees

 

24.2. In order that the Trustee may provide for the efficient management and the delivery of the broadest possible range of Services, it may retain the use of, and disclose information about the Applicant and/or Managed Entity and Services provided to the Applicant and/or Managed Entity to personnel and Agents of the Trustee and/or any Advisors of the Trustee whether such personnel or Agents are located inside or outside the Island of Jersey.

 

24.3. The provisions of this Clause shall remain in full force and effect notwithstanding these GTCs ceasing to apply.

 

25.   Recording of Telephone Calls

 

The Trustee may record telephone conversations for the purpose of providing the Services, for training purposes and to evidence compliance with instructions or regulatory requirements and the Applicant and/or Managed Entity consents to such recording. Any recordings made shall be and remain the property of the Trustee and the Trustee shall have the authority to deliver copies or transcripts of such recordings to any person including a court, tribunal, arbitrator or regulatory authority as it sees fit.

 

26.   Governing Law and Jurisdiction

 

26.1. These GTCs and all documents, agreements and application forms into which these GTCs are incorporated and the relationship between the Trustee and the Applicant and/or the Managed Entity shall be governed by and construed in accordance with the laws of the Island of Jersey.

 

26.2. The Applicant and the Managed Entity agree that any claims arising out of or relating to these GTCs that are not resolved through the ordinary conduct of business shall be initially submitted by the Trustee and/or the Applicant and/or the Managed Entity to each other via written notice. If such dispute, controversy or claim has not been fully resolved within 30 days from the date of the written notice, the Applicant and the Managed Entity agree that any dispute, controversy or claim arising out of or in relation to these GTCs and/or in connection with the relationship between the Applicant and/or the Managed Entity on the one hand and the Trustee and/or Agents on the other hand shall be submitted exclusively before the courts of the Island of Jersey. The Trustee shall also be entitled to take proceedings in connection with these GTCs against the Applicant and/or the Managed Entity before any other competent court.

 

27.   Complaints

 

If the Applicant has a complaint concerning the matters set out in these GTCs, details of such complaint should be sent to the Trustee in accordance with Clause 9.1 marked for the attention of the Client Director responsible for the Services.

14.1. It shall at all times be the sole responsibility of the Applicant to obtain such advice regarding suitability to the Applicant’s circumstances of the Services provided by, or arrangements with, the Trustee in relation to the Applicant and/or any Managed Entity and as to taxation or any other matter of law within or without the jurisdiction as may be appropriate or desirable; and under no circumstances shall the Trustee have any responsibility for the efficacy of any arrangement established by or upon the instructions of the Applicant or an Authorised Person.