Terms of Service
These standard terms and conditions form part of the Agreement between the Client and Cayman Management (the “Terms“). In these Terms the following words shall have the following meanings:
“Agreement” means any corporate or director services agreement, signed application form or such other written agreement of which these Terms form a part;
“Authorised Person” means any person given the authority of the Client to instruct Cayman Management or to sign anything on his behalf;
“Client” means the Client named in the Agreement, to include all beneficial owners of the Client Company and the Client Company the subject of the Agreement. All obligations in respect of more than one person constituting the Client shall be joint and several.
“Client Company” means the company incorporated at the request of the Client or such other company, Limited Partnership, foreign corporation, Foundation Company or other entity which is detailed in the application form and is the subject of the Agreement;
“Cayman Management” means Cayman Management Ltd. or any of its subsidiary or affiliated companies;
“Fee Schedule” means the schedule of fees and charges operated by Cayman Management from time to time;
“Indemnified Party” means Cayman Management, and its directors, officers, shareholders, employees and agents, present and future; and
“Law” means the current revision of any Law of the Cayman Islands.
In these terms and conditions:
- the singular shall include the plural and vice versa and words importing any gender shall include all genders;
- “persons” shall include companies or associations or bodies of persons whether corporate or unincorporated; and
- reference to laws or statutes are to laws and statutes of the Cayman Islands and include any revisions, statutory modifications and re-enactments thereof for time being in force.
2. PROVISION OF SERVICES
- these terms and conditions may be amended or added to unilaterally by Cayman Management. Without prejudice to the express provisions of these terms and conditions the relationship between Cayman Management the Client and any Client Company shall be subject to the customary practices and procedures of Cayman Management from time to time;
- prior to incorporating a company or providing the corporate services requested in the Agreement Cayman Management requires delivery in the appropriate form of all of the due diligence documentation listed in Cayman Management ‘s published Due Diligence Requirements;
- if Cayman Management is acting as the registered office of a company the original Minutes of all Shareholders and Directors meetings held outside the Cayman Islands should be forwarded to Cayman Management within FOURTEEN (14) days of the date upon which they are held. In the event that the meetings are held in the Cayman Islands they should be held at the offices of Cayman Management unless Cayman Management has agreed otherwise;
- where Cayman Management provides the registered office of a Company incorporated in the Cayman Islands, Cayman Management will:
- maintain the corporate records and statutory registers required by the laws of the Cayman Islands to the extent that the Client shall provide all necessary documents and information for that purpose;
- without prejudice to the generality of (i) maintain the Register of Beneficial Ownership as required by the Law and file the same with the Competent Authority of the Cayman Islands when legally required so to do;
- notify the Client of all fees due in accordance with the Law and arrange for payment of all fees due provided Cayman Management shall be in funds; and
- upon the provision by the Client of all the necessary documents and fees, file with the Government of the Cayman Islands the Client Company’s annual return as required by the Law and any other filing required to be made in accordance with any applicable law.
- where Cayman Management provides the registered office for a company incorporated outside the Cayman Islands and registered as a foreign company in the Cayman Islands, Cayman Management will provide the agent for service of process as required by the Law;
- Cayman Management may where required provide the services of corporate or individual directors and/or officers of the Client Company subject to and in accordance with the terms of the Articles and applicable law, and subject to and with the benefit of the indemnification provisions in the Articles and this Agreement;
- during the continuance of the Agreement Cayman Management will, use all reasonable endeavours to protect the interests of the Client Company in all things and to assist with compliance of the Client Company with all legal and regulatory requirements of the Cayman Islands and applicable law;
- Cayman Management will undertake the duties of directors and/or officers in accordance with what it considers to be the best interests of the Client Company. However, Cayman Management shall not be obliged to act in any manner which maybe unethical, unduly onerous or be of such nature that it might damage the reputation of or be detrimental to Cayman Management or conflict with the Articles.
3. INSTRUCTIONS, COMMUNICATIONS AND CONFLICTING INTERESTS
- instructions may be accepted by Cayman Management from the Client or any Authorised Person by letter or telefax, text, e-mail (as described in Clause 5 below), word of mouth, telephone, skype, voice mail, or any other reasonable means. Under no circumstances shall Cayman Management be liable to determine the authenticity or validity of any instruction purporting to be given by the Client or an Authorised Person;
- in any case where Cayman Management is required to act upon the instructions of the Client or an Authorised Person but such instructions shall not be forthcoming in a timely fashion, Cayman Management shall be entitled (but not obliged) in its complete discretion to act upon its own initiative without liability for any resulting loss;
- Cayman Management shall have no liability for acting in reliance upon any instructions given by or purporting to be by the Client or any Authorised Person;
- if the Client shall die or become bankrupt or of unsound mind or being a company shall be struck off or wound up, then Cayman Management may, but shall not be obliged to, require proof to its satisfaction that any person claiming authority by or through the Client has such authority and pending proof Cayman Management may in its complete discretion and without liability for the consequences act or decline to act on the directions of such claimant or on its own initiative;
- the beneficial ownership of any share in a Client Company is held by more than one person, Cayman Management shall, subject to specific reference in the application form, be entitled to regard each of them as having authority on behalf of all of them for all purposes including the giving of instructions and receipts;
- if any letter, notice, communication or legal process shall be served on Cayman Management on behalf of a Client Company Cayman Management will notify the Client by email or by such other method as Cayman Management may determine but Cayman Management accepts no responsibility for non-receipt by the Client or for acting or failing to act on its own initiative to protect the Client Company;
- if Cayman Management shall consider that it is or may be or become subject to conflicting interests in respect of any Client Company or any property or assets thereof, Cayman Management may at its entire discretion take such steps as it may deem necessary to safeguard its interests and shall not in any event be liable for complying with any order of any Court in the Cayman Islands or elsewhere. Cayman Management shall be entitled, without liability to the Client, pending determination of any conflicting claim, to refuse to pay or deliver to the Client all or any part of the Client Company’s property or assets as aforesaid which are the subject of conflicting claims or to act in any other manner that might prove to be improper upon the final determination of the conflicting claims. Without prejudice to any other terms and conditions Cayman Management shall be entitled to charge the Client or the Client Company with the amount of any legal or other costs incurred by Cayman Management in safeguarding its interests as aforesaid, including all charges in respect of time spent by Cayman Management in connection with such matter as described in the Fee Schedule available on request;
- if Cayman Management shall consider it necessary or desirable in its own interests to have any question or matter determined by a Court of competent jurisdiction in any part of the world, it shall be at liberty to apply for the same and, pending such determination, to decline to act on any such matters. Without prejudice to any other terms and conditions Cayman Management shall be entitled to charge the Client with the amount of any legal or other costs incurred by Cayman Management in safeguarding its interests as aforesaid; and
- in no event shall Cayman Management be obliged to act or carry out any service whether or not on the instructions of the Client or any Authorised Person if in the opinion of Cayman Management the act would be illegal or improper or would or might result in any liability on the part of Cayman Management as a matter of Cayman Islands Law or of any other law in any other jurisdiction or the act would be contrary to the best interests of Cayman Management or any of its other Clients.
- unless agreed otherwise the Client shall pay to Cayman Management fees including time spent charges in accordance with Cayman Management’s current fee schedule as amended from time to time; the current schedule being delivered to the Client at the time of execution of the Agreement; Cayman Management may change its fee scale and hourly rates at such time as it considers appropriate, without prior notice of any sort
- the Client or Client Company shall pay or reimburse Cayman Management for its reasonable and properly incurred out-of-pocket expenses and charges including but not limited to photocopying, fax, telephone, postage, courier, printing and other communications charges and other such expenses or charges of Cayman Management in the performance of the services specified in the Agreement;
- liability for the fees and disbursements of Cayman Management shall be that of the Client and if more than one, of the Clients jointly and several, or the Client Company at the discretion of Cayman Management;
- in the event that any invoice issued by Cayman Management to the Client remains outstanding for a period of thirty (30) days after delivery to the Client, Cayman Management shall be entitled to withdraw services and advise the Registrar of Companies or other official office that it no longer provides services for the Client Company without being liable to the Client for any loss that might result from such notification, including the striking off of the Client Company;
- Cayman Management shall be entitled to retain on its own behalf or on behalf of a Client Company the services of attorneys, accountants and other advisors and shall be entitled to reimbursement of all fees, disbursements and expenses thus incurred including any fees relating to Cayman Management’s time spent as described in the Fee Schedule; and
- Cayman Management shall be entitled to rely upon any advice so obtained if from a professional person or a person reasonably believed to be competent to give such advice and Cayman Management shall in no event have any liability for anything done or omitted to be done in reliance upon such advice. If Cayman Management shall determine to obtain such advice it shall not be liable for declining to act pending receipt of such advice; and
- for the avoidance of doubt, unless a fixed fee agreement has been reached with the Client, Cayman Management will at all times be entitled to payment for time spent in relation to any Client Company at rates applied by Cayman Management from time to time.
5. Electronic Communication
Cayman Management may communicate by e-mail in providing services for any Client or Client Company. Cayman Management shall not be responsible for failed delivery or the unauthorised interception, redirection, copying or reading of e-mails including any attachments, nor will Cayman Management be responsible for the effect on any computer system of any e-mails, attachments or viruses which may be transmitted in providing the services under the Agreement. The use of e-mail by Cayman Management to communicate and transmit information will not in and of itself constitute a breach of Cayman Management’s confidentiality obligations under the Agreement. Skype or WhatsApp are also recognised methods of communication as an alternative to a telephone call and in the event that the Client agrees with Cayman Management to communicate in this way the Client accepts any risks attaching thereto.
- Cayman Management shall, in addition to its right to withdraw services to any Client or any Client Company for non-payment of fees as provided above, be entitled to terminate its appointment under the Agreement:
- by giving not less than thirty (30) days’ notice to the Client; or
- without notice if the Client shall have committed any breach of its obligations under the Agreement and shall have failed, within fourteen (14) days of receipt of notice served by Cayman Management requiring it so to do, to make good such breach.
- the Client may terminate the appointment of Cayman Management under the Agreement:
- by giving not less than thirty (30) days’ notice to Cayman Management; or
- without notice if Cayman Management shall have committed any breach of its obligations under the Agreement and shall have failed, within fourteen (14) days of receipt of notice served by the Client requiring it so to do, to make good such breach.
- Termination of the appointment of Cayman Management under the provisions above shall be without prejudice to any antecedent liability of the parties to the Agreement, in particular termination shall not prejudice Cayman Management’s right to rely on indemnities set out in 8 below. Cayman Management shall be entitled to receive all fees and other moneys due and annual fees are not to be pro-rated but shall be payable in full for the year in which termination occurs. In addition, a termination fee shall be payable by the Client to Cayman Management in the amount specified in the Fee Schedule and shall be additional to the settlement of all other outstanding management fees.
- Cayman Management shall, on the termination of its appointment under the Agreement and upon payment by or on behalf of the Client of all outstanding fees, costs and expenses due to Cayman Management, under Clause 4 above including all charges in respect of time spent by Cayman Management ; deliver or procure to be delivered to the Client, or as the Client may direct, the registers, minute book and other corporate records of the Client which are in its possession or under its control, retaining copies of such corporate records at the cost of the Client.
7. Legal Proceedings
Cayman Management shall not be required to take any legal proceedings on behalf of any Client Company other than as may be expressly agreed in writing. At all times, Cayman Management and its directors, officers, authorised signatories, employees and affiliates shall be fully indemnified and remunerated by the Client to Cayman Management’s reasonable satisfaction for costs and liabilities, including all charges in respect of time spent by Cayman Management in connection with such legal proceedings.
- neither Cayman Management nor any Indemnified Party shall be liable to the Client or any other person for any damage, loss, claims, injury, proceedings, demands, liabilities, costs or expenses whatsoever suffered by the Client or any other person as a result of Cayman Management or any other Indemnified Party performing, or failing to perform, services under the Agreement or from Cayman Management or any Indemnified Party acting upon instructions from, or purporting to be from, the Client or an Authorised Person unless arising directly as a result of fraud on the part of Cayman Management or other Indemnified Party;
- the Client agrees to indemnify and hold harmless Cayman Management and all Indemnified Parties against all liabilities, obligations, losses, damages, penalties, actions, proceedings, claims, judgments, demands, costs, expenses or disbursements of any kind (including legal fees and expenses) whatsoever which they or any of them may incur or be subject to as a result of the Agreement and/or arising out of, or in connection with any delay or failure by any party to perform its obligations under the Agreement;
- the Client agrees to indemnify Cayman Management in respect of any penalties imposed on Cayman Management or any other Indemnified Party by any regulatory authority which are levied as the result of any action taken or omitted to be taken by Cayman Management or other Indemnified Party in the performance of services under the Agreement or pursuant to instructions of the Client and/or Authorised Person pursuant to the Agreement or otherwise;
- no person shall be found to have committed fraud under the Agreement unless or until a court of the Cayman Islands has reached a final determination to that effect; and
- these indemnity provisions shall survive termination of the Agreement.
Cayman Management shall not at any time disclose to any person and shall treat as confidential, any information relating to the business, finances or other matters of the Client which it may have obtained as a result of its services under the Agreement except:
- any information already known to the recipient;
- any information which is public knowledge;
- any information required to be disclosed by any law, regulation or court order to any governmental or other regulatory or taxation authority (for example the Cayman Islands Monetary Authority, the Competent Authority and the Tax Information Authority of the Cayman Islands);
- any information given to professional advisors receiving the same under a duty of confidentiality;
- any information given with the consent of the parties to the Agreement; or
- as may be determined by Cayman Management to be appropriate to protect the interests of the Client Company, Cayman Management or its employees or any of its other client companies.
- Cayman Management will retain originals or copies, electronic or otherwise of all documents for a period of six years from the dissolution of the Client Company or termination of the Agreement. Cayman Management may destroy them at any time after this period. During such 6-year period and thereafter Cayman Management shall have no liability for the loss, damage or destruction of papers and documents;
- Cayman Management is entitled to keep all Client Company papers and documents whenever there are any invoices for fees outstanding;
- where a Client requests documents of any Client Company be delivered by Cayman Management on termination of services under the Agreement Cayman Management shall be entitled to charge for printing, making and retaining a copy thereof, storage and handling at rates as determined by Cayman Management from time to time to include payment for any time involved at its current rates and
- documents may be retained by Cayman Management in physical or electronic form as determined by Cayman Management.
11. Entire Agreement
The terms set out herein and in the signed application form shall represent the entire agreement between the parties in respect of the Client Company.
12. Governing Law
The Agreement shall be governed by, interpreted and construed in accordance with the laws of the Cayman Islands and all parties submit to the non-exclusive jurisdiction of the courts of the Cayman Islands.