Standard Terms of Business

1     Information

1.1  Our mandate will be performed based on the information received from you. You undertake to ensure that we are given all information that may affect our mandate, including informing us immediately of any change in circumstances that may influence the position. We will not be responsible for determining the accuracy of the information provided and, unless you have expressly asked us and we have agreed in writing to do so, we will not perform any audit, due diligence or other procedure to verify that information.

1.2  Our mandate will be performed on our understanding of the relevant laws, statutes, regulations, rules and practice applicable at the time. We will not update or amend any advice once given for any subsequent changes in law or practice unless you specifically instruct us to do so and we have agreed in writing to do so.

1.3  All information regarding your business and affairs that is not in the public domain or already known to us through other sources will be kept confidential at all times unless we are instructed by you to disclose it, specifically or by implication, to a third party or to other advisers acting on your behalf, or unless we are required to disclose that information by law or any regulatory or government authority or any compliance rules applicable to us, or unless it is requested by our insurers or our advisers, in which case we will advise any such person that the information has been provided to us under obligations of confidentiality and/or privilege and we will seek to limit the disclosure as far as reasonably possible while still complying with the disclosure request.

1.4  If you are not the ultimate client, the nature of our business generally requires us to establish a direct relationship with your client in order to fulfil our duties under company law, anti-money laundering regulation and possibly fiduciary duties. Accordingly, at the appropriate time, you understand the need to make an introduction.

2     Responsibility

2.1  The relationship manager will decide on the appropriate personnel to assist in dealing with your instructions, so that your matters are dealt with efficiently and economically. It is our policy that mandates should be performed at an appropriate level of seniority, having regard to the nature of the work. This may involve obtaining assistance from other suitably qualified personnel employed by us, where appropriate.

2.2  We shall use our reasonable endeavours to complete our mandate and provide any deliverables under these terms of business (Terms) within the timeframes agreed with you or as soon thereafter as is reasonably practicable in the circumstances.

3     Charges

3.1  Our charges are based on our standard scale of fees prepared to ensure value in the delivery of our work to you. In the event required, our fees may also reflect such factors as complexity, urgency and risk. The hourly rates of personnel engaged on your matters are not charged on matters based on the standard scale of fees, but for certain types of work are available on request and are subject to adjustment by us from time to time, usually at the commencement of our financial year. Any adjustment to such rates will be notified to you at the relevant time.

3.2  We will charge you for any disbursements paid or incurred on your behalf. You can obtain details of our standard rates for services such as telephone calls, faxes and photocopying on request. We will charge you at cost for travel, couriers and other such expenses in the currency in which such expenses are incurred, converted to United States dollars (USD) on the date on which we purchase the foreign currency to pay the supplier.

4     Money on account

4.1  Fees and disbursements are payable on account in advance of services rendered. Failure to enforce this term does not imply a waiver on our part. Fees are generally invoiced in USD with an option to pay in HKD (calculated at an industry standard rate of HKD7.85/USD1.00). Fees may be invoiced in different currencies as agreed in advance.

4.2  Deposited funds are held in our account and applied to settle invoices rendered in relation to work that has been done and disbursements incurred. Funds held on deposit will be applied to settle any outstanding accounts owed by you to us irrespective of matter. Funds held in our account do not earn any interest for your benefit.

4.3  We will not be liable, to the extent allowed by law, for any loss you may suffer arising from:

(a)  any act or omission on the part of the banking institution concerned in relation to any account;

(b)  any interest or exchange rate fluctuation or any inability or failure of the banking institution to repay the funds on demand.

5     Invoicing

5.1  Invoices raised for annual services such as registered office, company secretary, annual returns or government charges are raised annually and are not refundable on commencement of the service. For ad hoc (non-recurring) work, such as provision of certificates of incumbency, share transfers, etc., where payment is not received in advance invoices will be issued on conclusion of the mandate. Upon request, we will also provide you with a more detailed explanation of how our charges have been calculated.

5.2  Invoices are issued and delivered to the billing party provided by you via an email from accounts@marburys.com or from the appropriate manager.

5.3  Our invoices are payable upon presentation unless stated otherwise. Interest is payable on amounts outstanding for more than 30 days (calculated from the day of presentation), and shall be the greater of the maximum rate of interest allowed by law or 8 per cent of the total value of the invoice. If you have any query regarding any invoice sent to you, please contact us immediately.

5.4  Our fees must be paid without bank charge deduction, or any withholding or deduction of any taxes, unless such withholding or deduction is required by law. Where this is the case, the amount of our fees will be automatically increased to an amount which (after such withholding or deduction of tax) will result in the receipt by us of an amount equal to the fees that would have been received if no tax was required to be withheld or deducted.

5.5  We reserve the right to refuse services to a client in respect of any company in the event that invoice payments are outstanding in respect of that client and/or associated group companies.

6     Proper Instructions

6.1 We are entitled to rely, and are authorised by you (the Client), acting for and on behalf of the entity or group to which we are providing services or in respect of any mandate, to act upon, instructions (Proper Instructions):

(a)   given or purportedly given by:

(i) any of the directors of the Client;

(ii) the company secretary (if not provided by us) of the Client; or

(iii) such persons as have been notified in writing from time to time by the Client to us as having authority to give Proper Instructions on the Client’s behalf in respect of the engagement (and we may rely upon such notification as being complete and accurate), and

(b)  by letter, fax or any means of electronic transmission that is received by us in a form legible to us; and

(c)  by means of telephonic communication subject to confirmation by electronic means.

6.2  We are not under any duty to make any enquiry as to the genuineness or authenticity of any Proper Instructions.

6.3  We shall not be obliged to take or omit to take any action pursuant to Proper Instructions where in our reasonable opinion, such Proper Instructions are not sufficiently clear and/or precise or do not contain sufficient information to allow us to comply materially with such Proper Instructions.

6.4  We shall not incur any liability in respect of any action taken or not taken by us or our staff in good faith in reliance upon Proper Instructions.

6.5  The Company irrevocably indemnifies us and our staff against losses (damages) suffered or incurred by any of them resulting from any action taken or not taken by us or our staff in good faith in reliance upon Proper Instructions, or the failure on the part of the client to provide Proper Instructions on a timely basis.

7     Electronic communication

7.1 We may communicate with you by electronic means. Emails may be subject to data corruption, delay, non-delivery, interception, unauthorised amendment and the inadvertent transmission of viruses. Unless you inform us upon receipt of these Terms that you do not wish to communicate by email, we will assume that you accept, to the extent allowed by law, the risks of our communicating in this way.

8     Retention of documents

8.1  You agree that we may destroy any papers, documents or other information under our control, as well as electronic copies thereof (the Documents), related to any matter on which we have provided services to you, 7 (seven) years after we have sent you our final invoice for that matter, unless:

(a) there is a practical or legal reason for not destroying the Documents;

(b) there is a longer legally prescribed retention period, in which case you agree that we may destroy any Documents on the expiry of the legally prescribed period; or

(c) you request otherwise in writing, in which case we may destroy any Documents on the expiry of the period requested by you.

8.2  You also agree that should you or your other advisers request retrieval from storage any Documents, you will pay our reasonable costs, including time spent reading such Documents, writing letters or other work which we, acting reasonably, deem necessary, to comply with such a request.

9     Know Your Client (KYC) requirements

9.1  Legislation requires us to obtain and retain on record documentary evidence of the identity of our clients, as well as information relating to any corporate entities to which our clients may wish us to provide services.

9.2  We are required by law to submit certain information, including changes in shareholding, directors and ultimate beneficial owners (UBOs) to either registered offices or central registries held by the Registrar of Corporate Affairs, so should any information regarding the ownership structure, shareholders, directors, officers, UBOs or nature of business change, it is your responsibility to report the new information and provide supporting documents to Marbury within seven (7) days of that change.

9.3  You or your client may be requested at any time during our relationship to provide personal references or additional information and documentation relating to you, your company or your business or to any particular transaction.

10   Liability and instruction

10.1  Unless and to the extent that any loss or damage suffered by you has been finally determined to have been caused by our gross negligence or wilful default or that of our individual partners, employees, agents or other persons acting for or controlled by us, you will, to the extent allowed by law, indemnify us on demand and hold us harmless against all actions, claims, proceedings, losses, damages, costs and expenses whatsoever and howsoever caused arising from or in any way connected with any mandate given to us.

10.2  Should you require us to recommend and/or instruct third parties, including other law firms or service providers, to act on your behalf, we will not, to the extent allowed by law, be liable for any acts or omissions on the part of those third parties.

10.3  You agree that you have fully considered all the provisions of these Terms and that they are reasonable in the light of all the factors relating to any mandate.

10.4  If any provision of these Terms is or becomes invalid, illegal or unenforceable, the remainder shall survive unaffected.

10.5  To the extent allowed by law, you indemnify us against any claim that may be made against us by any subsidiary, associate or shareholder of yours which may not have signed an engagement letter on these or substantially similar terms and for whom we perform any mandate.

11   Termination

11.1  You may give 90 days’ written notice of your intention to terminate with or without cause all mandates or any particular mandate given to us by you but without prejudice to all our and your accrued rights and obligations, whether actual, prospective or contingent.

11.2  We may give 90 days’ written notice of our intention to terminate all mandates or any particular mandate given to us by you if we have good reason, but without prejudice to all our and your accrued rights and obligations, whether actual, prospective or contingent.

11.3  Notwithstanding anything contained in these terms, we shall be entitled to terminate services with immediate effect by written notice to the Company in the event that we are of the opinion that we are unable to fulfil our role because (i) we do not have sufficient information available to us to enable us to perform financial, accounting, corporate, administrative, compliance or other services; or (ii) we suspect, on reasonable belief, wrongdoing, illegal purpose or activity on the part of either the client or the connected vehicles.

11.4  If you or we terminate any mandate you will pay our charges on any work in progress, any disbursements incurred prior to termination, and any charges related to the termination and transfer of the mandate to another provider.

11.5  We will be entitled to a lien over all the Documents for so long as money is owed to us in respect of our charges and disbursements.

12  Complaints and disputes

12.1  We look forward to working with you and will endeavour to undertake your instructions to your complete satisfaction. If, however, you have any queries or concerns, we invite you to contact Chris Dutka, Head of Operations in the first instance (chris.dutka@marburys.com).

12.2  Any mandate given to us and these Terms shall be governed by and construed in accordance with the laws of Hong Kong.

13   Variation

13.1 We reserve the right to vary the terms of these Terms without notice to you.

Updated: February 2018