Definitions and Interpretation
Administration Charge means the charge outlined in Clause 35 in an amount equal to 4.75% of the Annual Fee specified in each applicable Schedule of Services and Fees.
Affiliates means, with respect to any person or entity, any entity (whether partnership, company or otherwise), which owns or controls or is owned or controlled by, or under common control with or otherwise affiliated with such person.
Agreement means the director services agreement or master services agreement entered into with Waystone Governance Ltd. (or, in the case of voluntary liquidation services, the engagement letter entered into with Waystone Corporate Services (Cayman) Ltd) which sets out the agreement between you and us and pursuant to which the Waystone Contracting Party will provide Services to you (where applicable, in accordance with each relevant Schedule of Services and Fees attached thereto) and pursuant to which you agree to be bound by these General Terms.
Annual Fee means the non-refundable annual fee specified in the applicable Schedule of Services and Fees for an applicable Services specified therein.
Board Pack means, where relevant in accordance with an applicable Schedule of Services and Fees, the package of materials produced by the Waystone Contracting Party for review by board directors for scheduled board meetings.
Business Day means any day on which commercial retail banks are open for banking business in the Cayman Islands (not being a Saturday or a Sunday).
Confidential Information has the meaning given to that term in Clause 12.
Contracting Entity means each counterparty to the Services Contract (not being the Waystone Contracting Party or a Contracting Individual) to which we are providing the applicable Services on the terms of the Services Contract (and including, for the avoidance of doubt, each and any partnership or segregated portfolio, as applicable, on behalf of which the signing entity has signed the Agreement or any Schedule of Services and Fees as Contracting Entity) or which has otherwise executed the Agreement and/or any Schedule of Services and Fees for the purposes of providing indemnities to the Indemnified Persons on the terms set out in these General Terms, but excluding any investment manager which has signed a Schedule of Services and Fees solely for the purposes of acknowledging the terms of the appointment of a Contracting Individual as investment manager of the Contracting Entity.
Contracting Individual means, where the Services include the provision of a director, manager, managing member, member of an advisory board (or similar body) or other similar function to be provided by a specified individual to a Contracting Entity, the person to act in such capacity as specified in the relevant Schedule of Services and Fees.
Force Majeure means in relation to any party to the Services Contract, any circumstances beyond the reasonable control of that party, including but without limitation, any act of God; war; national emergency; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any government parliament or local authority; industrial dispute; civil commotion; fire; tempest and/or flood.
Hourly Rates means the standard hourly rates from time to time in place and available upon request with respect to the relevant Services.
Indemnified Persons means each member of the Waystone Group, each Waystone Person, each Waystone Agent and each Contracting Individual, their respective successors and assigns and their respective directors, officers and employees present and future and, where these are companies, their respective directors, officers and employees present and future.
Liquidation Fee means the non-refundable fee specified in an Agreement for voluntary liquidation services.
Losses include any action, adverse judgment, charge, claim, cost, damages, demand, detriment, expense, fine, fees (including legal fees), interest, investigation, liability, loss, obligation, order, penalty, proceeding, or other sanction.
Party means either you or us and, if applicable, the Contracting Individual, and, together, the Parties.
Relevant Documentation means, with respect to each Contracting Entity, its constitutional or organisational documents, including, as applicable, its memorandum and articles of association, certificate or articles of formation or organisation, limited liability company agreement or operating agreement, limited partnership agreement and all equivalent documentation, and its prospectus or offering memorandum (including all supplements and amendments), financial statements and management accounts, and all other contracts, agreements, side letters and documents entered into or approved by each Contracting Entity in connection with its investment business, including those entered into with any investment manager, anti-money laundering delegate, administrator or prime broker and such other documentation that may be reasonably requested by Waystone or a Contracting Individual.
Schedule of Services and Fees means each Schedule of Services and Fees which is signed by the Parties and attached to, or otherwise referred to in, the Agreement and which sets out the Services agreed to be provided by us to you, the applicable fees related thereto and any other applicable terms.
Services means the services to be provided by us to you pursuant to the Services Contract.
Services Contract means the contract collectively formed by the Agreement, each applicable Schedule of Services and Fees and these General Terms.
Waystone Agents means those persons, including any delegate or attorney, which we authorise to act on our behalf and for whose conduct we accept responsibility in connection with the Services.
Waystone Contracting Party means the applicable member or members of the Waystone Group which has executed a director services agreement, engagement letter or Schedule of Services and Fees and agreed to provide the applicable Services to you.
Waystone Group means Waystone Governance Ltd. and each of its Affiliates.
Waystone Persons means each and all of the Waystone Group’s partners, directors or employees.
we or us or Waystone means the applicable Waystone Contracting Party and, if the context so permits or requires, any other relevant members of the Waystone Group.
you, your (and all derivatives) means each Contracting Entity.
The headings and captions in any part of the Services Contract shall not affect in any way the meaning or interpretation of the Services Contract.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and words denoting a gender include every gender and references to persons include bodies corporate and unincorporated.
Reference to these General Terms, the Services Contract, the Agreement or any Schedule of Services and Fees shall be construed as reference to such document as amended, varied, supplemented, novated, replaced or restated from time to time.
Reference to a statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to such statute or provision as it has been amended, modified, extended, consolidated or replaced and shall include any subordinate legislation made under it.
Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes email and a reference to court includes any applicable arbitral tribunal.
- The Agreement and any applicable Schedule of Services and Fees shall set out the Services to be provided by us, the fees related thereto and associated matters. The Services Contract constitutes a contract for the provision of services and is not a contract of employment. Nothing in the Services Contract shall constitute any member of the Waystone Group, nor any Waystone Person or Waystone Agent (other than a Contracting Individual appointed as such) a director or officer of any Contracting Entity, nor shall it create a trustee relationship or a relationship of partnership between any member of the Waystone Group and any Contracting Entity.
- Each Party has entered into the Services Contract on its own behalf and the obligations of the Parties are several, not joint. To the extent that there is more than one Contracting Entity, the Services Contract may be terminated for one such Contracting Entity without the contractual relationship with any other Contracting Entity being affected.
- Subject to these General Terms, we warrant (to the exclusion of all other standards implied by law or otherwise, if any, to the extent permitted by law) to provide the Services with reasonable care and skill. In circumstances where, because of urgency or otherwise, we are not given comprehensive and specific written instructions or adequate time to properly consider the matter prior to provision of the Services, we will proceed on the understanding that you recognise and agree that the standard of care which we are obliged to exercise is only that which is reasonable and appropriate in such circumstances.
- Where the Services include the provision of advice, reports or any products, we shall not be obliged to update any advice, report or other product, oral or written, for events occurring after the advice, report or product concerned has been issued in final form. Any advice, opinion, statement of expectation, forecast or recommendation supplied by us shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.
- Any product of the Services in any form or medium shall be supplied for your benefit and information only. Save as may be required by law or by a competent regulatory authority (in which case you shall, unless prohibited by law, inform us in advance), it shall not be copied, referred to or disclosed by you, in whole (save for your own internal purposes) or in part, without our prior written consent. You shall not quote our name or reproduce our logo in any form or medium without our prior written consent. You may disclose in whole any product of the Services to your legal and other professional advisers if seeking advice in relation to the Services, provided that when doing so you inform them that: (a) disclosure by them (save for their own internal purposes or where compelled by law or regulation) is not permitted without our prior written consent: and (b) to the fullest extent permitted by law we accept no responsibility or liability to them in connection with the Services.
- Nothing in these General Terms or the Services Contract generally shall preclude any member of the Waystone Group from providing services of a like nature to the Services to any other person, firm, unit trust, corporation or other entity.
- In the provisions of the Services, none of the Waystone Contracting Party, any Waystone Person, any Waystone Agent or, if applicable, the Contracting Individual shall be obliged to act in any manner which, in the opinion of such Waystone Contracting Party, Waystone Person, Waystone Agent or, if applicable, the opinion of the Contracting Individual, may:
- conflict with any provision of the constitutional documents of a Contracting Entity;
- conflict with any applicable laws or otherwise be illegal;
- be immoral, unethical, unduly onerous or of such nature that such act may, in the Waystone Contracting Party’s opinion (or, if applicable, the opinion of the Contracting Individual), damage the reputation of or be detrimental to Waystone, the Waystone Group, any Waystone Persons or, if applicable, the Contracting Individual; or
- result in the risk of any sanction, including but not limited to prosecution or the withdrawal of, or imposition of any condition upon, any licence, consent or other authorisation issued to Waystone or any Waystone Affiliate or Waystone Persons by any legal, governmental or regulatory authority, in any applicable jurisdiction.
Your Warranties, Covenants and Acknowledgements
- You agree, covenant, warrant and represent (as applicable) that:
- you shall at all times ensure that you neither cause nor permit to be done anything which will or may impose any civil liability or criminal liability upon any member of the Waystone Group or any Waystone Person;
- you have and will at all times have the necessary power to enter into and perform your obligations under the Services Contract and your execution of the Agreement and entry into the Services Contract will not result in a violation of any law, statute or regulation;
- you acknowledge that Waystone relies upon prompt and accurate provision of information in order to provide the Services and you agree to ensure that Waystone is provided with prompt, complete and accurate responses to requests for information, including with respect to any Board Pack materials if applicable, and where responses are not received within the timeframe set out at the time of the request for information, Waystone cannot guarantee timely delivery of the Services to which such information requests relate;
- to enable us to perform the Services, you shall (i) supply promptly all necessary information and assistance and all necessary access to documentation in your possession, custody or under your control and to personnel under your control where required by us, (ii) use your best endeavours to procure these supplies where not in your possession or custody or under your control, and (iii) inform us of any information or developments which may come to your notice and which might have a bearing on the Services;
- you have supplied all relevant information that might materially affect the decision of Waystone or any Waystone Person to provide the Services to you, including all Relevant Documentation, and shall continue at all times to supply Waystone or, if applicable, the Contracting Individual, promptly, with all such information, documentation and records (and notification of changes) as Waystone or, if applicable, the Waystone Person may reasonably require in order to perform the Services;
- you shall keep Waystone, each relevant Waystone Persons and, if applicable, the Contracting Individual fully informed and up to date on all material matters relating to the business, affairs, financial position and prospects of each Contracting Entity;
- you shall provide, upon request, all necessary information and documentation required by Waystone, each relevant Waystone Persons and, if applicable, the Contracting Individual, to comply with any anti-money laundering obligations which arise under Cayman Islands law and regulation and supply information in response to our enquiries (if any) to enable us to comply with our statutory responsibilities to make disclosures to relevant authorities in respect of money laundering and any other criminal activity that we may encounter during performance of the Services and you acknowledge that any such disclosures may include Confidential Information;
- you acknowledge and agree that, at the reasonable expense of a Contracting Entity, Waystone or an applicable Waystone Person or Waystone Agent or, if applicable, the Contracting Individual shall, in consultation with the board of directors of the Contracting Entity, be entitled to retain the services of attorneys, accountants, auditors and other experts or advisers as is reasonably necessary or appropriate for Waystone and, if applicable, the Contracting Individual to undertake the Services or fulfil their applicable duties (including, for the avoidance of doubt, referring any legal question in respect of the Contracting Entity or, if applicable, the role of the Contracting Individual to the Contracting Entity’s legal counsel) and shall be entitled to reimbursement of fees and disbursements incurred;
- you acknowledge that if, for a reason of confidentiality or conflict of interest, Waystone or an applicable Waystone Person or Waystone Agent or, if applicable, the Contracting Individual needs to consult legal counsel other than the Contracting Entity’s legal counsel, as determined by Waystone and/or the Contracting Individual (if applicable) in their reasonable discretion, Waystone, an applicable Waystone Person or Waystone Agent and/or the Contracting Individual (if applicable) may consult independent legal counsel at the reasonable expense of the Contracting Entity;
- you acknowledge and agree that Waystone and any applicable Waystone Person and Waystone Agent and, if applicable, the Contracting Individual shall be entitled to rely upon any services or advice so obtained in accordance with this Clause 8 if Waystone, such applicable Waystone Person, Waystone Agent and/or, if applicable, the Contracting Individual believes that such professional persons are reliable and competent in the services provided and/or advice presented without being responsible for the accuracy of the advice or any result and, for the avoidance of doubt, you agree that none of Waystone, any Waystone Person, any Waystone Agent or, if applicable, the Contracting Individual shall have any liability in any event for anything done or omitted to be done in good faith in reliance upon such advice except through the actual fraud or wilful default of Waystone, a Waystone Person, a Waystone Agent or the Contracting Individual (if applicable);
- none of the Waystone Contracting Party, any Waystone Person, any Waystone Agent or, if applicable, the Contracting Individual, is responsible for providing any investment, accounting or legal advice whatsoever to any Contracting Entity or any other person;
- none of the Waystone Contracting Party, any Waystone Person, any Waystone Agent or, if applicable, the Contracting Individual, shall be required to take any legal action on behalf of a Contracting Entity other than on such terms as Waystone or, if applicable, the Contracting Individual, may determine and the Indemnified Persons are fully indemnified to their reasonable satisfaction for all costs and liabilities that may be incurred or suffered in connection therewith; and
- none of the Waystone Contracting Party, any Waystone Person, any Waystone Agent or, if applicable, the Contracting Individual, is required under the Services Contract to expend or risk any personal funds or incur any expenses in the performance of any of their duties or obligations or otherwise under the Services Contract.
- You acknowledge that Waystone and, if applicable, the Contracting Individual, shall be entitled for all purposes to rely upon the authenticity and accuracy of information received in good faith from you or on your behalf in respect of each Contracting Entity and shall not be responsible or liable to any person for any Losses arising by virtue of any such information or communication being inauthentic or inaccurate or any communication transmitted to or from Waystone or, if applicable, the Contracting Individual, having been interfered with or manipulated by any person.
- Where the Services include the provision of a Contracting Individual or any Waystone Person:
- you shall, as soon as reasonably practicable, procure directors’ and officers’ (or similar) insurance cover for the Contracting Individual, on terms which, by virtue of any rule of law, would otherwise attach to such a person in respect of any negligence, default, breach of duty or breach of trust of which such person may be in relation to each Contracting Entity, are acceptable to the board of directors of each Contracting Entity and, to the extent possible, to include the advancement of expenses to defend any proceedings against the Contracting Individual. Each Contracting Entity shall, upon request, provide copies of the policy and the certificates of currency in respect of the policy and any renewals of the policy to the Contracting Individual;
- you agree that, if you are notified by us that the relevant Waystone Person or Contracting Individual has resigned or otherwise ceased to be employed by the Waystone Group for any reason, the Contracting Individual or such Waystone Person shall promptly be removed from all relevant offices of each Contracting Entity then held by such Contracting Individual or Waystone Person and we shall use commercially reasonable efforts to find a replacement for such person who shall then become the Contracting Individual or appointed Waystone Person (as applicable) for all purposes under the Services Contract;
- you shall procure that audited financial statements or other appropriate confirmations of assets and liabilities of each Contracting Entity shall be made available when such information becomes available from time to time but in any event on at least an annual basis and shall provide such other information as may be reasonably requested by Waystone or, if applicable, the Contracting Individual;
- you agree that, if a Contracting Entity is or becomes inactive or is otherwise no longer required or is to be struck from the register of companies, unless it is otherwise agreed by the Contracting Individual, the Contracting Entity will be wound up by means of voluntary liquidation and the costs of such liquidation shall be paid from the assets of the Contracting Entity; and
- you acknowledge and agree that, if you require that the Contracting Individual take any action of whatever nature which, in the reasonable opinion of the Contracting Individual, might make any Indemnified Person liable in any way, the Indemnified Persons shall be and be kept indemnified and held harmless in respect of such action.
- We represent and warrant that the Waystone Contracting Party is duly incorporated and in good standing under the laws of the Cayman Islands, that it has the necessary power to enter into and perform its obligations under the Services Contract and that the execution of the Agreement and the performance of the Services Contract by Waystone and, if applicable, the Contracting Individual, will not result in violation of law, statute or regulation applicable to Waystone or, if applicable, the Contracting Individual. For the avoidance of doubt, Waystone does not and shall not at any time act as director under the terms of any Services Contract.
Confidential Information and Data Protection
- It is agreed that each Party shall at all times treat as confidential, and neither Party shall at any time disclose to any other person, any information relating to the business, finances or other matters of the other, which such Party has obtained as a result of its relationship with the other Party under the Services Contract (“Confidential Information”), save where the Confidential Information is or was: (a) already known to the recipient; (b) in the public domain or becomes public knowledge otherwise than as a result of the unauthorised or improper conduct of the disclosing Party; (c) disclosed as required by any law or order of any court, tribunal or judicial equivalent, or pursuant to any direction, request or requirement (whether or not having the force of law) of any central bank, governmental, supervisory or other regulatory agency or taxation authority; (d) disclosed by Waystone Persons for business purposes to any other Waystone Persons; (e) disclosed by either Party for business purposes to professional advisors, service providers, professional indemnity insurers or agents, engaged by one of the Parties, who receive the same under a duty of confidentiality; (f) made available by a third party who is/was entitled to divulge such information and who is not under any obligation of confidentiality in respect of such information to the other Party; (g) disclosed to a third party and/or its advisors in relation to any proposed sale, transfer or disposal of any or all the assets of, shares in or business of Waystone or its Affiliates or (h) disclosed with the consent of the other Party.
- Information relating to you, to our relationship with you, and to the Services, including Confidential Information (including, for the avoidance of doubt, all information provided by or on behalf of a Contracting Entity to allow Waystone to comply with anti-money laundering obligations), may be shared by us with any Waystone Person, and may be accessed by other parties who facilitate the administration of our business or support our infrastructure. We shall remain responsible for preserving confidentiality if Confidential Information is shared with Waystone Persons or accessed by such other parties. We may remove, or arrange for the removal of, names and any other identifiers from Confidential Information and then use such anonymised information for lawful purposes chosen at our discretion.
- Waystone (for itself and on behalf of any Waystone Affiliate and all Waystone Persons) reserves the right, and you explicitly authorise Waystone, Waystone Affiliates and the Waystone Persons to transfer, and consent to the transfer of, your data, including personal data, to Waystone Affiliates, other Waystone Persons, or other third party service providers as they may from time to time engage, or to any Waystone Agent or intermediary or regulated institution with regulatory or compliance obligations in relation to relationships between you and us, used in the provision of the Services, or in connection with data storage (including but not limited to cloud storage), anywhere in the world. You understand, acknowledge, accept and agree that where such transfer is made to a jurisdiction that is not the Cayman Islands, that jurisdiction may not have data protection laws in place that are of a similar standard to those in the Cayman Islands. You further acknowledge, accept and agree that: (i) we may retain your data, including personal data, after termination of the Services Contract in accordance with local laws and Waystone policy; (ii) we may be compelled to disclose data, including personal data, to third parties; and (iii) information passed to or accessible by any Waystone Affiliate for the purposes of disaster recovery, data back up or storage or compliance with laws or regulations, or Waystone Group compliance policies, shall not be construed as a breach of confidentiality or data protection laws.
- Where Waystone or any Waystone Affiliate is required to host data relating to you, any underlying investors or any other individual or entity, in order to undertake the Services, on a shared file site or portal (“Site”) accessible by you or any third party for or on behalf of you, it is specifically acknowledged that Waystone or the Waystone Affiliate shall, for the purposes of any data protection regulation or legislation, act as data processor and not data controller. For the avoidance of doubt, neither Waystone, or any Waystone Affiliate or Waystone Person shall have any liability whatsoever for misuse by any person of any Site (including, but not limited to, delay in uploading, failure to upload accurate, appropriate or sufficient information or documentation), or for any Losses suffered as a result of inaccuracy, failure or delay in Services as a result of such misuse
- You acknowledge, accept and agree that Waystone’ working papers relating to carrying out its duties under the Services Contract are the property of Waystone and that all documentation shall be maintained in accordance with Waystone’ document retention policy from time to time in place and all applicable laws and regulations.
Ownership and Advertisements
- We shall retain ownership of the copyright and all other intellectual property rights in the product of the Services, whether oral or tangible, and ownership of our working papers. You shall acquire ownership of any product of the Services in its tangible form upon the later of receipt of the product or payment of our Charges. For the purposes of providing services to you or other clients, the Waystone Persons shall be entitled to use, develop or share with each other knowledge, experience and skills of general application gained through performing the Services.
- Waystone Persons may, at their own expense, place announcements or advertisements in financial newspapers, journals and marketing materials describing the Services, and may wish to disclose that Waystone Persons have performed work (including the Services) for you, in which event we may identify you by your name but shall indicate only the general nature or category of such work (or of the Services) and any details which have properly entered the public domain.
Instructions and Monitoring
- We may rely on any instructions, requests or information supplied, orally or in writing, by any person whom we believe to be authorised by you to communicate with us for such purposes without further enquiry. We reserve the right to request that instructions received orally be confirmed in writing and we shall have no liability whatsoever for failure to act on instructions where, in our reasonable belief, such instructions are incomplete or inconsistent with applicable laws, regulation or any fiduciary duties, or (subject always to any fiduciary duties any Waystone Person or, if applicable, the Contracting Individual, may have) where you are in default of payment of any fees or disbursements. If we decide not to act on your instructions in these circumstances, we will notify you promptly of this decision.
- Waystone Persons may communicate with you by e-mail. E-mail communication is not secure and may be subject to delay, data corruption, amendment, loss or interception. You are deemed to accept these risks if you communicate with us by email and we shall not be responsible for any unauthorised interception, redirection, reading or copying of emails or attachments, nor any effect on any computer system of any emails, attachments, viruses or other which may be transmitted electronically.
- You agree that Waystone Persons may monitor or intercept all e-mails or other electronic communication and data to gather information for purposes of compliance, security, marketing, statistical analysis and systems development. Anything sent by e-mail which does not relate to the official business of Waystone Persons is neither given nor endorsed by any Waystone Person.
- Waystone may record and monitor telephone calls both received by and made by employees of Waystone. Any such recordings remain the property of Waystone, and may be used by us in the event of a dispute. Waystone Persons shall have the authority to deliver copies or transcripts of such recordings to any court or regulatory authority of competent jurisdiction as they see fit and you hereby waive any objection to such use of any such recordings or transcripts as evidence of any such telephone conversation.
Intake Procedures, Knowledge and Conflicts
- Provision of the Services is subject to the terms of the Service Contract and effective upon completion of our normal intake procedures, which may include, but are not limited to, the receipt of any required deposit, completion of a check for potential conflicts and receipt of any required information or documentation required from you or your Affiliates in order to comply with any obligations under applicable anti-money laundering regulations and legislation and our internal policies. You understand that such obligations are ongoing and undertake to provide such information and documentation upon request throughout the course of the Service Contract. Please note that if this information is not received to our satisfaction we may be obliged to cease to act for you, which may result in suspension or termination of the Services Contract without a refund of fees paid under the Services Contract, and any other action as we determine necessary, which may include making a report to relevant authorities without notice to you. For the avoidance of doubt, Waystone shall have no liability for failure to follow instructions, take action or make any relevant filings or payments in a timely manner if you have not discharged your obligations under this provision.
- The individual(s) within the Waystone Group who provide the Services: (a) shall not be required, expected or deemed to have knowledge of any information known to Waystone Persons which is not known to the individual(s) providing the Services; and (b) shall not be required to make use of or to disclose to you any information, whether known to them personally or to Waystone Persons, which is confidential to another client.
- Waystone Persons may provide services to other parties or persons who have interests which compete or conflict with yours (“Conflicting Parties”). Waystone Persons have and shall retain the right to provide services to Conflicting Parties. Where the interests of the Conflicting Party conflict with yours specifically and directly in relation to the subject matter of the Services, the individual(s) providing the Services shall not provide services to the Conflicting Party, and Waystone shall ensure that appropriate protections are put in place. The effective operation of such protections shall constitute sufficient steps to avoid any real risk of a breach of our duty of confidence.
- Where a party has engaged us to provide services before you and subsequently circumstances change, we may consider that, even with the operation of such protections, your interests are likely to be prejudiced and we may not be satisfied that the situation can be managed. In that event we may have to terminate the Services Contract and we shall be entitled to do so on immediate notice but we shall inform you.
- If you know or become aware that a Waystone Person is advising or proposing to advise such a Conflicting Party, you shall inform us promptly and we shall determine in our sole discretion what action is appropriate.
- Notwithstanding our duties and responsibilities in relation to the Services, you remain responsible for managing your affairs, deciding what to do having received any product of the Services and implementing such product.
- Where you require us, or it is more efficient for us, to perform Services at your premises or using your systems or networks, you shall ensure, at your cost, that all necessary arrangements are made, including, but not limited to, access, security, licences or consents.
- You shall, for the benefit of the Waystone Group, take all reasonable steps to satisfy yourself that all capitalisation monies and other funds passing through the Contracting Entity and its Affiliates do not represent the proceeds of, and that the Contracting Entity and its Affiliates do not engage in, any unlawful activity.
- You shall provide to Waystone upon request such information and documentation as we may from time to time reasonably require in relation to the Contracting Entity, its operators, owners or activities, including in relation to the steps taken pursuant to Clause 31.
- You shall not, directly or indirectly, solicit the employment of any of our employees involved in performing the Services, during performance or for a period of six (6) months following completion or termination of the Services Contract, without our prior written consent. This does not prevent you offering employment to any of our employees who may respond to any recruitment advertising campaign.
- We shall render invoices in respect of the Services and you shall pay to Waystone the fees specified in each applicable Agreement or Schedule of Services and Fees, including the relevant Annual Fee, Administration Charge, Liquidation Fee and any applicable set-up fees (collectively the “Charges”) without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority except as required by law. If you make any such deduction, you will pay to Waystone such additional amounts as are necessary to ensure receipt by Waystone of the full amount which Waystone would have received but for the deduction. All Charges and any other fees, costs and expenses payable under the Services Contract may be invoiced and collected by any member of the Waystone Group for and on behalf of the Waystone Contracting Party.
- An Administration Charge shall, unless expressly excluded in the applicable Schedule of Services and Fees, be payable in advance to cover the expense of all standard communications charges including, without limitation, telephone, scanning, photocopying, printing, and routine postage services. For certain Services, the applicable Schedule of Services and Fees may instead or additionally require a deposit and replenishment of the same for expenses or disbursements. Where expenses or disbursements are not covered by the Administration Charge or such deposit, our invoice may not include some expenses or disbursements which fall within the period of the invoice but have not been captured prior to our invoice being sent and such expenses or disbursements will be included in a later invoice.
- You shall additionally:
- reimburse Waystone for all reasonable expenses and disbursements incurred in the provision of Services including, but not limited to, all reasonable travel expenses (including, without limitation, airfare, lodging, transportation, meals and incidentals) and other expenses properly incurred by Waystone or the Waystone Persons; and
- make payment to cover any payment obligations which Waystone may discharge on your behalf and you shall pay all applicable filing or other government fees to Waystone in advance of the date that Waystone is required to make payment of such fees. Waystone shall have no liability for failure to make relevant filings or payments in a timely manner if you have not discharged your obligations under this provision. A fee of USD$500 shall be payable by you to offset the additional costs incurred by Waystone in invoicing and/or specifically dealing with any sanction, fine or penalty arising from any failure to comply with this provision.
- Annual Fees and Liquidation Fees are calculated based on the scope of responsibility required of the Waystone Persons (and, if applicable, the Contracting Individual) providing the Services, as determined from representations received from you and your advisors, and a preliminary review of certain documents provided to Waystone at the time of entering into the Services Contract. An Annual Fee or Liquidation Fee is calculated by relying on this information to estimate the time required to be expended to effectively engage in that scope of responsibility at the Hourly Rates. Situations beyond Waystone’ reasonable control may unexpectedly arise during the course of each year that were not anticipated or disclosed when the Annual Fee or Liquidation Fee was calculated. In the event that the scope of work or responsibility changes, or if unanticipated issues, problems, or any other circumstances arise during the year that require additional work from the Waystone Persons undertaking the work and cause the time expended to exceed that anticipated when calculating the Annual Fee or Liquidation Fee, the Hourly Rates will apply. Waystone will advise you before additional work is undertaken at Hourly Rates and shall, upon request, provide a detailed summary of all additional time incurred by the relevant Waystone personnel. Additionally, if and when additional services are required, additional fees as agreed between the parties will be payable. If the scope of the Services increases, requiring additional work be undertaken which is not anticipated under this Agreement (or as agreed for any such additional services), such additional work shall be calculated at the Hourly Rates.
- Further details of Charges, deposits and any special payment terms may be set out in an applicable Agreement or Schedule of Services and Fees, and the Charges may differ from any prior estimates or quotations. Hourly Rates are generally calculated to take into consideration the nature and degree of complexity of the Services, the level of responsibility and skill set of the individuals involved in providing the Services and the expected amount of time spent.
- In return for the provision of the Services by us, you shall pay our Charges (without any deduction or right of set-off), within 30 days of receipt of our invoice or at such other time as may be specified in an applicable Schedule of Services and Fees. We may at any time, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you and we may deduct amounts owed by you from any balance we may hold on your behalf.
- We may charge interest on any outstanding balances at 5% per annum (this rate applying after as well as before any court award or judgement in our favour in respect of outstanding balances).
- Where there is more than Contracting Entity, all of the Relevant Entities shall be liable to pay our Charges in full separately and together as a group.
- If we are required by any court or regulatory body in any proceedings to provide information or to produce documents relating to the Services, you shall pay our costs incurred in preparing for and responding to any such requirement at our standard hourly rates applicable at the time of responding, together with expenses, including but not limited to, legal expenses.
- All Annual Fees will automatically increase by 5% per annum. Additionally, subject to the provisions of this Clause, we reserve the right to increase the Hourly Rates and other standard fees from time to time. Where such increase is not expressly provided for in the Agreement, such increase shall occur no more than once in any twelve (12) month period. Save for such automatic increase in the Annual Fee, we will provide notice of any fee increase thirty (30) days before the proposed date of the increase.
- In addition to the other Charges, we reserve the right to charge a one-off non-refundable fee of US$500 for standard anti-money laundering due diligence upon your request for the provision of a new Service. Additionally, you agree that, if at any time during the duration of the Agreement we determine, in our sole discretion, that we are required to undertake additional work or enhanced due diligence: (i) to comply with anti-money laundering legislation or regulation or our internal policies or procedures; (ii) to satisfy ourselves as to your risk rating; or (iii) because of delay in the provision of due diligence information or documentation by you or any party on your behalf, we shall be entitled to charge you, and you hereby agree to pay, for such additional work at the Hourly Rates.
Liability and Indemnity
- Subject to Clauses 46 and 47, the aggregate liability of each and all Waystone Persons and Contracting Individuals, in contract or tort or under statute or otherwise, for any loss or damage suffered by you or any other person arising from or in connection with the Services or the Services Contract, however the loss or damage is caused (for the avoidance of doubt, including if caused by our negligence but not if caused by our fraud), shall, unless agreed otherwise in the Agreement, be limited to three (3) times the annual fee payable by you pursuant to the Agreement.
- Subject always to the aggregate limitation on our liability pursuant to Clause 45, our liability shall in aggregate be limited to that proportion of the total loss or damage, after taking into account contributory negligence (if any), which is just and equitable having regard to the extent of our responsibility for the loss or damage concerned, and the extent of responsibility of any other person also responsible or potentially responsible (“Responsible Person”). No account shall be taken of any matter affecting the possibility of recovering compensation from any Responsible Person, including the Responsible Person having ceased to exist, having ceased to be liable, having an agreed limit on its liability or being impecunious or for other reasons unable to pay. Full account shall be taken of the responsibility to be attributed to any Responsible Person whether or not it is a party to any proceedings or a witness.
- Where there is more than one Contracting Entity, the limitation on our aggregate liability agreed under Clause 45 to each shall be apportioned by them amongst them. No beneficiary shall dispute or challenge the validity, enforceability or operation of Clause 45 on the ground that no such apportionment has been agreed or that the agreed share of such aggregate maximum liability to any beneficiary is unreasonably low.
- If our performance of the Services is prevented or delayed by any act or omission by you or any third party, we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from that act or omission.
- Where we require information from you or from other sources in the course of delivering the Services, to the fullest extent permitted by law we shall not be liable to you or to any third party for any loss or damage suffered by you or any third party arising from fraud, misrepresentation, withholding of information material or relevant to the Services or required by us, or other default (whether accidental or otherwise) relating to such information or the provision thereof, whether on your part or the part of the other source of information, unless such fraud, misrepresentation, withholding or other such default is evident to us without any further enquiry.
- We accept the benefit of the limitations of this section on our own behalf and confer benefits on all Waystone Persons and Contracting Individuals involved in providing the Services.
- Any parts of the Services Contract which do or may exclude or limit our liability shall not apply beyond the extent permitted by law.
- You shall not bring any claim against anyone except the Waystone Contracting Party in respect of loss or damage suffered by you arising out of or in connection with the Services. Subject always to the provisions of Clauses 45 to 51 (inclusive), this restriction shall not operate to limit or exclude the liability of Waystone for the acts or omissions of anyone involved in providing the Services.
- Any claim in respect of loss or damage suffered as a result of, arising from, or in connection with the Services Contract, whether in contract or tort or under statute or otherwise, must be brought: (a) within four years of the date of the activity giving rise to the claim; or (b) if the claim relates to our unauthorised disclosure of Confidential Information, within four years of the date on which the unauthorised disclosure took place, and in any of these cases that shall be the date when the earliest cause of action (in contract or tort or under statute or otherwise) shall be deemed to have accrued in respect of the relevant claim. For the purposes of this Clause a claim shall be brought when court proceedings are commenced.
- No Indemnified Person shall, in the absence of actual fraud or wilful default, be liable for any Losses suffered or incurred by any Contracting Entity at any time from any cause whatsoever arising out of any act or omission on the part of Waystone or, if applicable, the Contracting Individual in connection with the duties or obligations under the Services Contract. For the avoidance of doubt, no Indemnified Person will be answerable for the acts, receipts, neglects or defaults of any other director, employee, officer, partner, limited partner, general partner, manager, agent or trustee of a Contracting Entity, for the solvency or honesty of any persons with whom assets of a Contracting Entity are lodged or deposited, for any insufficiency of any security upon which any monies of a Contracting Entity may be invested, or for any other Losses.
- In addition to, and not in substitution for, any indemnity in favour of an Indemnified Person contained in any Relevant Documentation, you shall, on a full indemnity basis, indemnify and hold harmless Waystone (for itself and on trust and as agent for the benefit of the other Indemnified Persons) and the Indemnified Persons against any Losses which may be suffered or incurred by the Indemnified Persons at any time in connection with the performance of the Services Contract, except where such Losses arise from the actual fraud or wilful default of Waystone or, if applicable, the Contracting Individual. Nothing in this Clause shall prevent an Indemnified Person from commencing or defending an action in his own name at his own expense.
- You will advance attorneys’ fees and other costs and expenses incurred by any Indemnified Person in connection with the defense of any action, investigation or proceeding that arises out of the provision of Services under the Services Contract. Waystone or, if applicable, the Contracting Individual, shall reimburse such advanced fees, costs and expenses (to the extent actually made) in the event that a final judgment of actual fraud or wilful default is made against Waystone or, if applicable, the Contracting Individual.
- For the avoidance of doubt, references in these General Terms to actual fraud or wilful default shall mean a final non-appealable judgment to such effect by a competent court in relation to the conduct of the relevant party.
- The Services Contract shall become effective on the date of the Agreement and shall remain in full force and effect until terminated in accordance with this section or in accordance with any specific termination rights within the Agreement.
- Subject to the remaining provisions of this section, the Services Contract may be terminated at any time by either Party on three (3) months’ written notice to the other Party.
- Where there is more than one applicable Schedule of Services and Fees, the provision of Services under one or more applicable Schedule of Services and Fees may, subject to the remaining provisions of this section, be terminated at any time by either Party on three (3) months’ written notice to the other Party. Such termination shall have the effect of terminating the effectiveness of the applicable Schedule of Services and Fees but shall not affect the Services Contract as it applies to all non-terminated Services.
- If we determine, at any time and in our sole discretion, that a Contracting Entity or any of its activities have been categorized as falling outside of Waystone’ acceptable risk parameters, the Service Contract (or, if applicable, the relevant Services under one or more applicable Schedule of Services and Fees) may be terminated on 30 days’ notice in writing from Waystone to you.
- In the event of any breach by, or if the Waystone Contracting Party or any Waystone Person or Waystone Agent reasonably suspects a breach by, you or any of your Affiliates of any law, statute or regulation, or where Waystone determines that to continue to provide Services or otherwise operate under the Services Contract would conflict with any Waystone Person’s or Waystone Agent’s (or, if applicable, the Contracting Individual’s) duties under applicable laws or would be immoral or unethical or where there are circumstances which mean that Waystone, such Waystone Person or Waystone Agent or, if applicable, the Contracting Individual could not reasonably be expected to continue to provide Services or otherwise operate under the Services Contract, the Waystone Contracting Party shall be entitled, but shall not be bound, to suspend or to terminate the Services Contract with immediate effect by notice in writing to you.
- If any proceedings are commenced against or in respect of a Contracting Entity by any of its current or former shareholders, partners, members or other holders of a legal or equitable interest in the Contracting Entity, or any legal, governmental or regulatory authority, the Waystone Contracting Party may terminate the Services Contract with immediate effect by notice in writing to you.
- If either Party (the “Defaulting Party”) shall commit any material breach of the terms of the Services Contract, the other Party (the “Non-Defaulting Party”) shall be entitled to serve notice (the “Default Notice”) on the Defaulting Party requiring the Defaulting Party to remedy such breach within not less than seven (7) days of receipt of such notice (the “Remedy Period”). If the Defaulting Party has failed to remedy such breach within the Remedy Period, the Non-Defaulting Party may terminate the Services Contract forthwith. In the case of a Default Notice served by Waystone on you, such Default Notice may also specify that the Services Contract shall be suspended during the Remedy Period.
- If either Party is affected by Force Majeure, it shall promptly notify the other Party of the nature and extent of the circumstances giving rise to such Force Majeure and, for the duration thereof, neither Party shall be deemed to be in breach of the Services Contract, or otherwise liable to the other, for any delay in performance or non-performance of any of its obligations under the Services Contract, except for payment obligations arising under the Services Contract, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other Party in accordance with this Clause.
- The Services Contract shall automatically terminate in the event that a Contracting Entity (in respect of that Contracting Entity only) or the Waystone Contacting Party enters into liquidation proceedings (except a voluntary liquidation for the purpose of reconstruction or amalgamation, upon terms previously approved in writing by the other Party) or if an administrator, administrative receiver or other receiver of any of the assets of either Party is appointed, or if either party makes a voluntary arrangement with its creditors or becomes subject to an administration order.
- Termination of the Services Contract shall not affect any rights that may have accrued for either you or us before termination but no further liability of any nature, howsoever arising, shall accrue upon the Waystone Group with respect to the Services Contract.
- All fees accrued (including on a pro-rata basis) to, and all expenses incurred by, us, including fees for Services performed and charges for expenses and disbursements owed, shall, whether or not invoiced at the time of termination or suspension, become immediately due and payable in full upon termination or suspension of the Services Contract.
- Any part of these General Terms which, by its nature or implicitly or to give effect to its purpose, is to continue in force after expiry or termination of the Services Contract shall survive, such as (for example) restrictions on use or confidentiality or terms protecting against liability.
- All notices or other communications to be given under the Services Contract shall be delivered by hand, mailed by recorded delivery or registered post (or for international mail, by courier) or emailed to the relevant Party at the respective addresses set out in the Agreement, or such other address as may be notified from time to time in writing by the relevant Party to the other Parties.
- Notices shall be deemed to have been received:
- if delivered by hand, at the time of delivery;
- if sent by pre-paid recorded delivery or registered post, two (2) Business Days after posting;
- in the case of international mail by courier, five (5) Business Days from the date of posting; or
- in the case of email, at the time of sending,
provided that, if receipt occurs before 9am on a Business Day, the notice shall be deemed to have been received at 9am on that day and, if receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice shall be deemed to have been received at 9am the next Business Day.
- To establish service it shall be sufficient to prove that the envelope containing the notice was addressed to the address specified pursuant to Clause 70 or as otherwise notified and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery, registered post or airmail letter, or transmitted by email to the email address as specified pursuant to Clause 70. For the avoidance of doubt, Section 8 of the Electronic Transactions Act (Revised) of the Cayman Islands shall not apply to communications between the Parties.
- Any delay or failure to exercise or enforce any rights shall not amount to a waiver of such rights. We will only be taken to have released our rights under these General Terms if we have expressly confirmed such release in writing to you.
- No one shall have the right to assign the benefit (or novate the burden) of the Services Contract to another party except that Waystone may assign the benefit (or novate the burden) to any Waystone Affiliate or Waystone Person. We shall have the right to appoint sub-contractors to assist us in providing the Services. Where we do so, we may share Confidential Information and, for purposes in connection with the Services Contract, shall accept responsibility for their activities forming part of the Services.
- Each clause or term of the Services Contract constitutes a separate and independent provision. If any provision or part-provision of the Services Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of the Services Contract.
- Unless we agree otherwise in writing, the Services Contract sets forth our entire agreement for rendering the Services. If and to the extent these General Terms conflict with the Agreement and/or any applicable Schedule of Services and Fees, the Agreement and/or the applicable Schedule of Services and Fees shall prevail.
- The Services shall be performed in accordance solely with the laws of the Cayman Islands. Where the Services are required to be performed or executed in a jurisdiction other than those of the Cayman Islands, Waystone will rely on you and your advisors to provide it with all absolute directions of the relevant jurisdiction in order to perform or execute the Services appropriately, correctly and in a timely manner in accordance with the laws, regulations and practices of the respective jurisdiction and we shall be fully entitled to rely upon such direction without any liability whatsoever.
- We may at any time alter, adapt, change, add to or remove portions of these General Terms and, if we do so, we will post any such changes on our website. Your continued use of the Services following such change will be deemed and constitutes your acceptance and you agree to be bound by the current version of the General Terms at all times and that all previous versions shall be superseded by the current version.
Third Party Rights
- Save as set out in Clause 80, no person other than you or us has any right, whether in their own right or otherwise, to enforce any provision of the Services Contract including without limitation under the Contracts (Rights of Third Parties) Act, 2014 of the Cayman Islands (as amended, modified, re-enacted or replaced) (the “Third Party Rights Act”).
- Each Indemnified Person who is not a party to the Services Contract (a “Third Party”) shall have the express right to enforce the contractual terms of the Services Contract under the Third Party Rights Act. Notwithstanding the foregoing, the consent of or notice to any Third Party shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under the Service Contract at any time.
Governing Law and Arbitration
- The Services Contract and any dispute, claim, suit, action or proceeding arising out of or in any way connected to it are governed by and shall be construed in accordance with the laws of the Cayman Islands. You irrevocably agree that any such dispute, claim, suit, action or proceeding shall be referred to and finally resolved by arbitration under the LCIA Rules as then in force, save that we shall have the right at our sole option as an alternative to arbitration to bring any claim against you in the courts of the Cayman Islands or any competent jurisdiction. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be the Cayman Islands. The language to be used in the arbitral proceedings shall be English.