General Terms of Business – Waystone Asset Management (Cayman) Limited

      These Terms and Conditions of Business (the “General Terms”) apply to the provision by Waystone Asset Management (Cayman) Limited of all Services to you and are incorporated into each Agreement, to the extent they do not conflict with the Agreement.

      Definitions and Interpretation

      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 agreement entered into with Waystone Asset Management (Cayman) Limited which sets out the agreement between you and us and pursuant to which the Waystone Contracting Party will provide Services to you and pursuant to which you agree to be bound by these General Terms, to the extent they are not inconsistent with the Agreement.

      Annual Fee means the fee as set out in the Agreement.

      Board Pack means 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 11.

      Connected Person means, in relation to a Contracting Entity, any director, officer, manager, general partner, member of its governing body, beneficial owner, shareholder, member, partner, controller or other person who directly or indirectly owns or controls, or exercises significant influence over, that Contracting Entity.

      Contracting Entity means each counterparty to the Services Contract (not being the Waystone Contracting Party) 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 which has otherwise executed the Agreement for the purposes of providing indemnities to the Indemnified Persons on the terms set out in these General Terms.

      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.

      Indemnified Persons means each member of the Waystone Group, each Waystone Person, each Waystone Agent, 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.

      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, 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, investment advisor, anti-money laundering delegate, administrator or prime broker and such other documentation that may be reasonably requested by Waystone.

      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 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 Waystone Asset Management (Cayman) Ltd.

      Waystone Group means Waystone Asset Management (Cayman) 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 or the Agreement 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.

      Services

      1. The Agreement 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 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.
      2. 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.
      3. 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.
      4. 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.
      5. 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.
      6. 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.
      7. In the provision of the Services, none of the Waystone Contracting Party, any Waystone Person, or any Waystone Agent shall be obliged to act in any manner which, in the opinion of such Waystone Contracting Party, Waystone Person, or Waystone Agent may:
        1. conflict with any provision of the constitutional documents of a Contracting Entity;
        2. conflict with any applicable laws or otherwise be illegal;
        3. be immoral, unethical, unduly onerous or of such nature that such act may, in the Waystone Contracting Party’s opinion, damage the reputation of or be detrimental to Waystone, the Waystone Group, or any Waystone Persons ; or
        4. 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

      1. You agree, covenant, warrant and represent (as applicable) that:
        1. 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;
        2. 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;
        3. 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;
        4. 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;
        5. 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 promptly with all such information, documentation and records (and notification of changes) as a Waystone Person may reasonably require in order to perform the Services;
        6. you shall keep Waystone and each relevant Waystone Person fully informed and up to date on all material matters relating to the business, affairs, financial position and prospects of each Contracting Entity;
        7. you shall provide, upon request, all necessary information and documentation required by Waystone and each relevant Waystone Persons 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;
        8. you shall notify Waystone immediately upon becoming aware that you, any Contracting Entity or any Connected Person is or becomes subject to any financial sanctions or other restrictive measures imposed, administered or enforced by any governmental, regulatory or sanctions authority applicable to you, such Contracting Entity, Connected Person or Waystone.
        9. you shall notify Waystone immediately upon becoming aware that any director of a Contracting Entity (a) has been convicted of an offence involving dishonesty, fraud or any indictable offence; (b) is or has become subject to any disqualification, prohibition or restriction which affects or may affect that person’s ability lawfully to act in relation to a Contracting Entity; or (c) is the subject of circumstances giving rise to a reasonable suspicion that there is a risk of abuse of the Contracting Entity for illicit purposes if that person continues to act as director.
        10. you acknowledge and agree that, at the reasonable expense of a Contracting Entity, Waystone or an applicable Waystone Person or Waystone Agent 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 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 to the Contracting Entity’s legal counsel) and shall be entitled to reimbursement of fees and disbursements incurred;
        11. you acknowledge that if, for a reason of confidentiality or conflict of interest, Waystone or an applicable Waystone Person or Waystone Agent needs to consult legal counsel other than the Contracting Entity’s legal counsel, as determined by Waystone in its reasonable discretion, Waystone, an applicable Waystone Person or Waystone Agent may consult independent legal counsel at the reasonable expense of the Contracting Entity;
        12. you acknowledge and agree that Waystone and any applicable Waystone Person and Waystone Agent 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 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 or any Waystone Agent 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 or a Waystone Agent;
        13. none of the Waystone Contracting Party, any Waystone Person or any Waystone Agent is responsible for providing any investment, accounting or legal advice whatsoever to any Contracting Entity or any other person;
        14. none of the Waystone Contracting Party, any Waystone Person or any Waystone Agent shall be required to take any legal action on behalf of a Contracting Entity other than on such terms as Waystone 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;
        15. none of the Waystone Contracting Party, any Waystone Person or any Waystone Agent 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; and
        16. from time to time there may be delay or disruption to Services resulting from regulatory requirements or requirements for internal review relating to compliance or regulatory matters (including, but not limited to, anti-money laundering, sanctions or requests for regulatory consent to proceed with a transaction). In such circumstances, none of the Waystone Contracting Party, any Waystone Person or any Waystone Agent shall have any liability for any such delay or disruption.
      2. You acknowledge that Waystone 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, having been interfered with or manipulated by any person.

      Waystone Representations

      1. 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 will not result in violation of law, statute or regulation applicable to Waystone. For the avoidance of doubt, Waystone acts solely in the capacity expressly specified in the Agreement and does not act as director, trustee, custodian, administrator, broker, dealer, legal adviser, tax adviser or auditor of any Contracting Entity unless separately appointed in writing to do so.

      Confidential Information and Data Protection

      1. 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, stock exchange, 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.
      2. 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.
      3. Waystone and the Waystone Group may at any time collect, use, process, store and/or disclose information that you provide to us or which is provided to us on your behalf about or in respect of you or any other individual or entity, in a number of jurisdictions, for the following purposes, without limitation: (i) for the purposes set out in the Agreement; (ii) to facilitate or otherwise assist in the provision of the Services (including the provision of information within the Waystone Group); (iii) to service any of your other relationships with any Waystone Affiliate; (iv) to provide you with information regarding products and services that we believe may be of interest to you. If you do not wish to receive this information you should notify us at [email protected]; (v) to meet our or any member of the Waystone Group’s regulatory and/or financial and/or other reporting obligations in the Cayman Islands or elsewhere; (vi) for the purposes of fraud or money laundering prevention by any Waystone Affiliate; or (vii) as otherwise required by applicable law or regulation. Further information on our processing activities is available at Global Data Protection Information Notice – Waystone. It is acknowledged and understood that, in its provision of the Services, Waystone is a data processor and not a data controller, for the purposes of any data protection legislation or regulation and in respect of any personal information received from you or on your behalf and the provisions of the Data Processor Addendum at Appendix 1 shall apply.
      4. 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.
      5. 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 nor 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
      6. You acknowledge, accept and agree that Waystone’s 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’s document retention policy from time to time in place and all applicable laws and regulations.

      Ownership and Advertisements

      1. 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.
      2. 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

      1. 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 that any Waystone Person 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.
      2. 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.
      3. 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.
      4. 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

      1. Provision of the Services is subject to the terms of the Services 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 Services 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.
      2. 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.
      3. 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.
      4. 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.
      5. 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.

      Your obligations

      1. 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.
      2. 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.
      3. 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.
      4. 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 30.
      5. 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.

      Charges

      1. We shall render invoices in respect of the Services and you shall pay to Waystone the fees specified in the Agreement, including the relevant Annual 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.
      2. You shall additionally:
        1. 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
        2. 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.
      3. Annual Fees are calculated based on the scope of responsibility required in 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 is calculated by relying on this information to estimate the time required to be expended to effectively engage in that scope of responsibility. Situations beyond Waystone’s reasonable control may unexpectedly arise during the course of each year that were not anticipated or disclosed when the Annual Fee was calculated.
      4. Annual Fees may be reviewed periodically by Waystone, taking into account the scope and nature of the Services, the responsibilities of Waystone, applicable legal and regulatory requirements and the broader commercial arrangements between the Parties. Any proposed revision to the Annual Fees following such review shall be notified to you.
      5. If the scope of the Services or the responsibilities of Waystone increases, or circumstances arise which were not reasonably anticipated or disclosed when the applicable Annual Fee was agreed and which require material additional work or time from Waystone, Waystone shall be entitled to charge an additional fee commensurate with the additional work required. Waystone will advise you of any such additional fee before undertaking the relevant additional work.
      6. Further details of Charges, deposits and any special payment terms may be set out in the Agreement, and the Charges may differ from any prior estimates or quotations. Charges 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.
      7. 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 the Agreement. 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.
      8. Where there is more than one Contracting Entity, all of the Contracting Entities shall be liable to pay our Charges in full separately and together as a group.
      9. 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, together with expenses, including but not limited to, legal expenses.

      Miscellaneous

      1. 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.
      2. 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.
      3. Employees from any Waystone Affiliate may be utilised to undertake the Services, at the Waystone Group’s sole discretion.
      4. 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.
      5. 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, the Agreement shall prevail.
      6. 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.
      7. 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

      1. Save as set out in Clause 50, 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”).
      2. 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 Services Contract at any time.

      Governing Law

      1. 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.

      Complaints

      1. Waystone is committed to dealing effectively with any complaints you may have about our service. We aim to resolve complaints fairly and in a timely fashion. You can make a complaint by contacting your regular Waystone contact or by sending an email to [email protected]. Please provide us with your name, address and account or reference number together with full details of your complaint. Waystone policies and procedures can be found at https://www.waystone.com/waystone-policies/.

      Regulator

      1. Waystone Asset Management (Cayman) Ltd is licensed by the Cayman Islands Monetary Authority. The regulatory status of Waystone entities can be found at https://www.waystone.com/waystone-regulatorystatus/.

      Appendix 1- Data Processing Addendum

      1. This Data Processing Addendum (the Addendum) will be incorporated into all arrangements, agreements and contracts (Agreement) under which Waystone Asset Management (Cayman) Ltd (Waystone) provide services, to the extent that in doing so it acts as a ‘data processor’ (as defined in applicable Data Protection Law). Where a client of Waystone already has in place a signed Data Processing Agreement or Amendment Agreement to incorporate data processing provisions (DP Agreement), and there is any conflict with the terms of this Addendum, the terms of the DP Agreement will prevail.
      2. For the purpose of this Addendum:
        — Data Protection Law shall mean all applicable data protection law, which may include, (i) with effect from 25 May 2018, the General Data Protection Regulation (Regulation (EU) 2016/679) including any amendments thereto and any applicable consequential national data protection legislation and guidance and codes of practice issued by any relevant European data protection supervisory authority; and (ii) from 30 September 2019, the Cayman Islands Data Protection Law, including any amendments thereto and any applicable consequential national guidance and codes of practice issued by any relevant Cayman Islands data protection supervisory authority, and the terms ‘personal data’, ‘data controller’, ‘data processor’ and ‘process’ shall have the meanings given to them under Data Protection Law.
        — Entity means the person or entity that has entered into an Agreement with Waystone.— Relevant Data Protection Authority means the relevant independent public authority responsible for monitoring the application of the relevant Data Protection Law.
      1. Waystone acknowledges that in providing the services under the Agreement Waystone may process personal data on behalf of the Entity. Details of such processing are set out in Schedule 1.
      1. In such circumstances, Waystone acknowledges that the Entity is a data controller and Waystone is data processor and the parties agree that:
        1. Waystone processes personal data, as may be specified in the privacy notice of the Entity, on behalf of the Entity in the context of providing the Services under the Agreement. The obligations and rights of the Entity shall be as set out in this Addendum;
        2. Waystone will only process such personal data in accordance with the documented instructions of the Entity unless required to do so under applicable laws to which Waystone is subject. In such a case Waystone shall inform the Entity of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
        3. Waystone shall ensure that the persons authorised by Waystone to process such personal data are bound by appropriate confidentiality obligations;
        4. Waystone shall implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of Data Protection Law and to ensure the rights of the data subject;
        5. Waystone shall take all measures to ensure a level of security of processing required pursuant to Data Protection Law;
        6. Waystone is authorised to engage sub-processors to undertake processing on its behalf, provided that it provides the Entity with prior notice in writing containing details of the sub-processors that it engages and informs the Entity of any intended changes concerning the addition or replacement of such sub-processors and provides the Entity with a reasonable opportunity to object to such changes. In certain circumstances the Entity may engage or contract directly with agents, delegates or representatives of Waystone in which case such agents, delegates or representatives are not considered sub-processors of Waystone for the purposes of this Clause and Clause (g) below and, instead, are considered to be processors on behalf of the Entity;
        7. where any sub-processor of Waystone will be processing such personal data on behalf of the Entity, Waystone shall ensure that a written contract exists between Waystone and the sub-processor containing clauses equivalent to those imposed on Waystone in this clause. In the event that any sub-processor fails to meet its data protection obligations, Waystone shall remain fully liable to the Entity for the performance of the sub-processor’s obligations;
        8. Waystone shall inform the Entity without undue delay in the event of receiving a request from a data subject to exercise their rights under Data Protection Law and provide such co-operation and assistance as may be required to enable the Entity to deal with such request in accordance with the provisions of Data Protection Law;
        9. taking into account the nature of the processing, Waystone shall assist the Entity by appropriate technical and organisational measures, insofar as this is possible, to allow the Entity to comply with requests from data subjects to exercise their rights under Data Protection Law;
        10. Waystone shall assist the Entity in ensuring compliance with obligations in respect of security of personal data, data protection impact assessments and prior consultation requirements under Data Protection Law, taking into account the nature of the processing and information available to Waystone;
        11. when Waystone ceases to provide services relating to data processing Waystone shall: (i) at the choice of the Entity, delete or return all such personal data to the Entity; and (ii) delete all existing copies of such personal data unless relevant law requires or permits storage of the personal data;
        12. Waystone shall: (i) make available to the Entity all information requested that is necessary to demonstrate compliance with the obligations laid down in this clause; and (ii) allow for and contribute to audits, including inspections, conducted by the Entity or another auditor mandated by the Entity, provided however that the Entity shall be entitled, at its discretion, to accept adherence by Waystone to an approved code of conduct or an approved certification mechanism to aid demonstration by Waystone that they are compliant with the provisions of this clause;
        13. Waystone shall inform the Entity without undue delay if, in its opinion, it receives an instruction from the Entity which infringes Data Protection Law;
        14. Waystone shall notify the Entity without undue delay after becoming aware of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed and provide the Entity with such co-operation and assistance as may be required to mitigate against the effects of, and comply with any reporting obligations which may apply in respect of, any such breach; and
        15. Personal data may be transferred by the Processor outside the relevant jurisdiction, including to a jurisdiction which is not recognised by the Relevant Data Protection Authority as providing for an equivalent level of protection for personal data as is provided for in the relevant jurisdiction. These jurisdictions may include the United States of America, the United Kingdom and Asia. If and to the extent that the Processor does so, it will ensure that appropriate measures are in place to protect the privacy and integrity of such personal data and in particular will comply with its obligations under any Data Protection Law governing such transfers, which may, as applicable, include: (a) entering into a contract governing the transfer which contains the “standard contractual clauses” approved for this purpose by the Relevant Data Protection Authority; (b) transferring your personal data pursuant to binding corporate rules; or (c) a transfer where the Relevant Data Protection Authority has decided that the recipient ensures an adequate level of protection.
      1. The Entity warrants that any personal data received by Waystone has been collected and then transferred to Waystone in accordance with Data Protection Law.
      1. This Addendum shall be governed by and construed in accordance with the same governing law the parties have chosen to apply to the Agreement or, in the absence of such provision, the laws of the Cayman Islands. Any dispute arising under or in connection with this Addendum shall be resolved in accordance with the relevant provisions of the Agreement or, in the absence of such provision, the Grand Court of the Cayman Islands shall have exclusive jurisdiction.

      SCHEDULE 1:

      Subject Matter –

      The processing of Personal Data by Waystone in connection with the provision of Services under the Services Contract.

      Duration of Processing –

      For the duration of the Services Contract or such additional period as may be required to comply with applicable law, regulation, professional obligations, litigation hold requirements, record retention requirements or legitimate business record-keeping obligations.

       Nature of Processing –

      The processing activities may include:

      • collection;
      • recording;
      • organisation;
      • structuring;
      • storage;
      • retrieval;
      • consultation;
      • use;
      • transmission;
      • disclosure;
      • alignment;
      • analysis;
      • reporting;
      • reconciliation;
      • transfer;
      • archiving;
      • deletion; and
      • destruction.

      Processing may be automated, manual or a combination of both.

      Purpose of processing –

      To provide Services as agreed in the Services Contract.

      Categories of Data Subjects –

      Investors, beneficial owners, clients/customers of Client, Client employees, business contacts, regulatory contacts.

      Categories of Personal Data –

      Identification data, contact data, financial data, corporate information, regulatory and due diligence data, communication data.

      List of Waystone sub processors –

      Please contact [email protected]

       

       

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