Terms of Business
Terms of Business at 16/05/2018
1. DEFINITIONS AND INTERPRETATION
1.1 The following terms used in these conditions shall have the meaning ascribed to them below:
"Administered Body" shall mean any trust, body corporate, foundation, individual, partnership or other association or body of persons to or in respect of which Crestbridge provide Services;
"Appointed Person Contract" means any agreement appointing an individual to act in any capacity in relation to the Client;
Business Day" means any day upon which banks in the Island of Jersey are usually open for business, not being a Saturday or a Sunday;
"Client" means the person identified as "the client" in the Engagement Contract and/or such Administered Body to whom or for whom the Services are, or are to be, provided (in the case of more than one person "Client" shall mean such persons jointly and severally);
"Crestbridge" means the Service Provider, any company or partnership legally or beneficially owned by or affiliated to or associated with the Service Provider, and their subsidiaries and associates, wheresoever each and any of them may be situate;
"Data Protection Laws" means the means the Luxembourg ‘Law of 2nd August 2002 on the Protection of Persons with regards to the Processing of Personal Data’, the Data Protection (Jersey) Law 2005, the Data Protection (Jersey) Law 2018, the UK Data Protection Act 1998, and the Cayman Islands, Data Protection Law 2017 together with any successor legislation together with the Directive and the GDPR (as amended or replaced from time to time), guidance, directions, determinations, codes of practice, circulars, order, notices or demands issued by any Data Protection Authority and any applicable national, international, regional, municipal or other data privacy authority or other data protection laws or regulations in any other territory in which the Client Personal Data is processed or to which it is transferred.
"Data Protection Authority" means any competent Supervisory Authority or data protection regulatory authority in relation to any of the Data Protection Laws;
"Directive" means the European Electronic Communications Directive 2002/58/EC.
"Employees" means all directors, officers and employees of the Service Provider and/or Crestbridge and persons engaged by the Service Provider and/or Crestbridge for the purposes of fulfilling an Appointed Person Contract including, for the avoidance of doubt, any such persons for the time being acting or who have acted as directors, alternate directors, compliance officer, money laundering reporting officer, money laundering compliance officer, secretary or in any official individual capacity of the Administered Body;
"Engagement Contract" means (i) any agreement in writing entered into between Crestbridge and the Client relating to the terms of the provision of the Services (including any Appointed Person Contract) and/or (ii) any letter (and any attachments including these Terms and Conditions) sent to the Client which sets out the contractual terms between Crestbridge and the Client relating to the provision of the Services;
"GDPR" means, the General Data Protection Regulation EU 2016/679 and "Controller", "Processor", "Data Subject", "Personal Data", "Special Categories of Personal Data", "Processing", "Sub-Processor" and "Appropriate Technical and Organisational Measures" shall have the meanings given to them in the GDPR.
"Proper Instructions" means Proper Instructions as defined in Clause 4;
"Services" means, in connection with the management and/or administration of the Administered Body, the services to be provided by or on behalf of the Service Provider as set out in the Engagement Contract or as otherwise agreed from time to time between the Client and the Service Provider;
"Service Provider" means (as the case may be) Crestbridge Limited, Crestbridge Corporate Services Limited, Crestbridge Fund Administrators Limited, Crestbridge Real Estate Limited, Crestbridge Family Office Services Limited or such other member of Crestbridge identified as such in the Engagement Contract.
1.2 In these Terms & Conditions, unless the context otherwise requires:
1.2.1 the singular includes the plural and the masculine includes the feminine and the neuter and vice versa;
1.2.2 references to persons shall include companies or associations or bodies of persons whether corporate or unincorporate;
1.2.3 references to Clauses shall be to clauses of these Terms & Conditions; and
1.2.4 references to any law shall be deemed to include references to such law as re-enacted, amended or extended from time to time and any analogous provision or rule under any applicable.
1.3 Clause headings are used for convenience only and shall not affect the construction or interpretation of these Terms & Conditions.
2. OBLIGATIONS AND DUTIES OF THE SERVICE PROVIDER
2.1 The Service Provider will provide the Services and in performing the Services, the Service Provider shall:
2.1.1 subject to Clause 4, use its reasonable endeavours to act in accordance with all Proper Instructions; and
2.1.2 act in accordance with the standards of a responsible and prudent service provider.
2.2 The Service Provider is authorised by the Client to do anything which is reasonably necessary either to perform the Services or to comply with any applicable laws and/or regulations in any relevant jurisdiction.
3. OBLIGATIONS AND DUTIES OF THE CLIENT
3.1 During the continuance of the appointment of the Service Provider, the Client shall:
3.1.1 advise the Service Provider forthwith of any actual or proposed modification, alteration or addition to the constitutional documents of the Administered Body;
3.1.2 make available to the Service Provider at the relevant time the requisite information, documentation, records and funds to enable the Service Provider to perform the Services;
3.1.3 not, without the prior written consent of the Service Provider, issue or use or permit the issue or use by any person of any promotional literature, document or material or any advertisement in which the name of any member of Crestbridge appears;
3.1.4 neither cause nor permit to be done anything which will or may be calculated to impose any civil or criminal liability or penalty on the Service Provider or any of the Employees;
3.1.5 keep the Service Provider fully informed as to the business affairs, financial position and prospects of the Administered Body, and, where different, to the extent required to comply with applicable law, the business affairs, financial position and prospects of the Client and their affiliates in the Engagement Contract;
3.1.6 not undertake any activities which will require a licence, consent or approval in any jurisdiction without first obtaining such licence, consent or approval or which will breach any conditions contained in any such licence, consent or approval;
3.1.7 comply with all laws, regulations and filing requirements in any applicable jurisdiction (except to the extent that such matters are the responsibility of the Service Provider under the Engagement Contract);
3.1.8 undertake and hereby warrant that all assets introduced, or that will be introduced, to the Administered Body have been lawfully gained and lawfully introduced and are not derived from or otherwise connected with any illegal activity;
3.1.9 undertake and hereby warrant that it has taken appropriate tax, legal, financial, accounting and other advice with regard to the creation, use, administration and (if relevant) dissolution of the Administered Body;
3.1.10 not, without the prior written consent of the Service Provider, directly or indirectly, nor shall any person associated with the Client, solicit the employment of any of Crestbridge's directors or employees, as the case may be, involved in performing the Services while the Services are being performed or for a period of twelve months following the completion or following termination of the Services;
3.1.11 discharge all taxes and governmental dues payable by the Administered Body; and
3.1.12 notwithstanding the generality of Clause 3.1.5, immediately upon becoming aware thereof, the Client shall notify the Service Provider of:
(i) any event which could be reasonably foreseen to have a material effect on the Administered Body or its assets or activities (including, without limitation, any act evidencing the insolvency of the Administered Body or commencing its liquidation, winding up or dissolution) or upon the Service Provider's willingness to continue to provide the Services;
(ii) any actual or threatened litigation in any jurisdiction or any actual or threatened investigation by any judicial or regulatory authority and any progress thereof, and it shall promptly provide such information as the Service Provider may, in its discretion, require in respect thereof.
3.2 Without prejudice to Clause 3.1, the Client shall promptly provide the Service Provider, and (where the Client is not deemed to include the Administered Body) the Administered Body, with such information and documentation required by the Service Provider to comply with its obligations (including anti-money laundering obligations) under any laws, regulations or guidelines applicable to the Service Provider. The time at which such information and documentation is required, the form it shall take and the adequacy for purpose shall be solely determined by Crestbridge in its absolute discretion.
3.3 By providing the information and documentation under Clause 3.2, the Client will be taken to have consented to the onward disclosure of such information and documentation to such third parties as shall in the opinion of the Service Provider be required in connection with the Services or necessary for the proper performance of the obligations of the Service Provider under any applicable law or regulation. Failure to supply such required information and documentation as requested by the Service Provider may result in the Services being terminated under Clause 9.1.4 and Crestbridge may make such disclosure to regulatory authorities as it sees fit in its sole discretion and without liability.
4. PROPER INSTRUCTIONS
4.1 The Service Provider may rely upon, and is authorised by the Client to act upon instructions (the "Proper Instructions"):
4.1.1 given or reasonably assumed by the Service Provider to be given by:
(i) such persons as have been notified in writing from time to time by the Client to the Service Provider as having authority to give instructions on the Client's behalf (and the Service Provider may rely upon such notification as being complete and accurate until the Client provides the Service Provider with written notice to the contrary); or
(ii) any person that the Service Provider reasonably believes to be duly authorised to give such instructions on behalf of the Client; and
4.1.2 given by letter, fax or any means of electronic communication that is received by the Service Provider in a form legible to it and, if accepted (at the sole discretion of the Service Provider), oral instructions.
4.2 The Service Provider is not under any duty to make any enquiry as to the genuineness or authenticity of any Proper Instructions or obliged to verify the identity of the person giving such instructions.
4.3 Neither the Service Provider nor any of the Employees shall be obliged to take or omit to take any action pursuant to Proper Instructions where in the reasonable opinion of the Service Provider, such Proper Instructions (i) are not sufficiently clear and/or precise or do not contain sufficient information to allow the Service Provider to comply materially with such Proper Instructions or (ii) may contravene applicable law or regulation or (iii) may be inconsistent with any fiduciary duty owed by the Service Provider, the Administered Body or the Employees or (iv) result in damage to the reputation of any member of Crestbridge.
4.4 Neither the Service Provider nor any Employee nor any member of Crestbridge shall incur any liability incurred in respect of: (i) any action reasonably and properly taken or not taken by the Service Provider or any of the Employees in good faith in reliance upon Proper Instructions; or (ii) in respect of the non-receipt of any Proper Instructions; or (iii) in respect of the lack of authority of any person purportedly giving Proper Instructions.
4.5 The Client and the Service Provider may wish to communicate electronically with each other. However, the electronic transmission of information cannot be guaranteed to be secure nor virus or error free and such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. The Client and the Service Provider agree to use commercially reasonable procedures to safeguard their respective electronic communications, but both also recognise that such procedures cannot be a guarantee that transmissions will be unaffected by such hazards. Both the Client and the Service Provider accept these risks and authorise electronic communications between each other, subject to explicit revocation by notice in writing (other than by electronic means). The Client and the Service Provider will each be responsible for protecting their own systems and interests in relation to electronic communications and neither the Client nor the Service Provider shall have any liability to each other on any basis, whether in contract, tort or otherwise, in respect of the above recognised hazards or risks other than insofar as caused by a failure to use commercially reasonable procedures as set out above.
5. NO RECOURSE AGAINST EMPLOYEES, OFFICERS OR DIRECTORS
The obligations of the Service Provider and the Client are solely the corporate obligations of the Service Provider and the Client respectively. No recourse shall be had in respect of any obligation or claim arising out of or based upon the provision of the Services (including any obligation or claim arising out of or based upon an Appointed Persons Contract) against any Employee or against any employee, officer, director or secretary of any Administered Body except where the claim, demand, liability, cost or expense in connection therewith arises from the gross negligence, fraud or wilful misconduct of such Employee or such employee, officer, director or secretary of any Administered Body.
6. REMUNERATION AND GOODS AND SERVICES TAX ("GST")
6.1 In consideration for the Services to be rendered by the Service Provider, the Client shall pay to the Service Provider the agreed fees set out in the Engagement Contract.
6.2 In addition to the remuneration set out the Engagement Contract, the Client shall reimburse to the Service Provider all out-of-pocket expenses reasonably incurred by the Service Provider in the proper performance of the Services.
6.3 All fees, remuneration, disbursements and expenses payable by the Client and/or the Administered Body shall be paid to the Service Provider within 30 days following the presentation to the Client of a request for payment.
6.4 In the event that the Client shall:
6.4.1 fail to pay the fees due to the Service Provider in accordance with this Clause; or
6.4.2 fail to reimburse the expenses of the Service Provider in accordance with this Clause,
the Service Provider shall be entitled to apply any funds held by the Service Provider to the order of the Client or the Administered Body to the account of the Service Provider in application towards such outstanding fees or expenses. The Service Provider may, at its sole discretion charge interest at the rate of 1% per month on all overdue amounts from the due date to the date of payment of such overdue amount.
6.5 In the event of non-payment of all or any part of any fees, expenses or disbursements due to the Service Provider or which the Service Provider is liable to pay on behalf of the Client or the Administered Body or in respect of which the Client or the Administered Body becomes liable to the Service Provider in any other manner, then the Service Provider shall have a lien over, or the right not to release from the possession or control of the Service Provider, all or any documents or assets, including assets held on behalf of the Client or to the order of the Client or the Administered Body or on behalf of or to the order of any company or other body in common ownership with the Client or the Administered Body or otherwise connected or affiliated to the Client or the Administered Body in any manner, until such time as all such fees, expenses, disbursements or liabilities due and payable are discharged. For the avoidance of doubt, this lien shall apply to all documents and assets held in relation to the matter in respect of which the fees, expenses, disbursements or liability have been incurred and in relation to any other matter whatsoever relating to the Client or the Administered Body.
6.6 The Client shall at all times keep sufficient funds available to meet with any and all filing requirements in any applicable jurisdiction to ensure that all taxes and governmental dues payable by the Administered Body are discharged.
6.7 In providing the Services, Crestbridge may where it is considered appropriate arrange for any Administered Body to be listed as an International Services Entity ("ISE") for the purpose of the relevant GST regulations in Jersey. Crestbridge may charge an administration fee in connection with any such listing as an ISE and may also charge as a disbursement any ISE fee paid or payable to a relevant tax authority in Jersey in connection with any such listing.
6.8 Where Crestbridge is obliged to charge GST or other similar tax in respect of the Services, the relevant charge will be added to the fees charged at the applicable rate from time to time in force. Any estimate or quotation given by Crestbridge in relation to fees shall be exclusive of GST or any other similar tax unless expressly stated.
7. INDEMNITY & LIABILITY
7.1 The Client hereby undertakes to hold harmless and to fully and effectively indemnify and keep indemnified Crestbridge, the Service Provider and the Employees against all actions, proceedings, claims, demands, damages, costs and other liabilities whatsoever in respect of any act or omission in connection with its or their duties in performance of the Services save for liabilities arising as a consequence of gross negligence, fraud or wilful misconduct on the part of such persons.
7.2 The Service Provider shall not, in the absence of gross negligence, fraud or wilful misconduct, be liable for any loss or damage suffered by the Client arising directly or indirectly out of any act or omission on the part of Crestbridge, the Service Provider or any of the Employees in connection with its or their duties hereunder including, without prejudice to the generality of the foregoing, any loss or damage arising in good faith in reliance on or in accordance with:
7.2.1 any Proper Instructions; and
7.2.2 the opinion or advice of legal advisers, auditors, investment advisers, bankers or other competent professional advisers to the Client or the Administered Body notwithstanding that such opinion or advice contains some error or shall not be authentic.
7.3 None of the Service Provider, any member of Crestbridge or the Employees shall be held liable for:
7.3.1 any failure or delay in the performance of its obligations in connection with the Services arising out of or in connection with circumstances beyond its reasonable control (including, without limitation, acts of God, civil or military disturbances, outbreaks of war, acts of terrorism, natural disaster, act of government or any other authority, accidents, labour disputes or any power, telecommunications or computer failure); or
7.3.2 any indirect or consequential economic loss or damage whatsoever.
7.4 The indemnities given to the Service Provider, Crestbridge and the Employees in these Terms and Conditions are in addition to and without prejudice to any indemnity allowed by law.
7.5 The indemnities given to the Service Provider, Crestbridge and the Employees pursuant to these Terms and Conditions shall continue after the termination of the Services and without prejudice to the generality of this Clause 7, the indemnities given at Clause 7.1 shall apply to any acts required to be undertaken by the Service Provider or the Employees by law or regulation following the termination of the Services.
8.1 Neither the Service Provider nor the Client shall, during the continuance of the Services or after the termination of the Services, disclose to any person whosoever or whatsoever any information relating to the business, investments, finances or other matters of a confidential nature of the other party of which it may have obtained during the course of the Services or otherwise and both the Service Provider and the Client shall use their reasonable endeavours to prevent any such disclosure as aforesaid PROVIDED ALWAYS that such information may be disclosed where the disclosure is:
8.1.1 about matters already in the public domain;
8.1.2 made with the written consent of the other party;
8.1.3 made pursuant to the terms of these Terms and Conditions or the Engagement Contract;
8.1.4 made pursuant to any applicable law, regulation or order (including an order of any competent judicial, governmental, supervisory or regulatory body);
8.1.5 made by the Service Provider where there is a duty to the public to disclose or it is in the public interest to do so to investigate or prevent fraud or other illegal activity;
8.1.6 to any other members of Crestbridge;
8.1.7 made by the Service Provider to any other entity where such disclosure is necessary for the proper performance of the Services; and/or
8.1.8 made by the Service Provider to any of its delegates and/or data processors (subject always to appropriate confidentiality undertakings being obtained from such subcontractors and/or data processors).
8.2 Neither the Client nor the Service Provider shall do any act, matter or thing which would or might prejudice or bring into disrepute the business or reputation of the Administered Body, the Service Provider, the Employees or Crestbridge.
8.3 In the event of the termination of the Services for whatever reason, the provisions of this Clause 8 shall remain in full force and effect.
9.1 The Service Provider shall be entitled to terminate the Services:
9.1.1 by giving not less than 90 days' notice in writing to the Client;
9.1.2 at any time by notice in writing to the Client if the Client is no longer the majority owner or controller of the Administered Body;
9.1.3 at any time by notice in writing to the Client if the Administered Body become(s) subject to a winding-up or liquidation (except for a summary winding-up or a voluntary liquidation for the purpose of reconstruction or amalgamation upon terms previously approved by the Service Provider in writing) or becomes bankrupt or commits, makes, suffers, consents to or acquiesces in any other act or omission indicative of insolvency under the law of any relevant jurisdiction; or
9.1.4 at any time by notice in writing to the Client if the Client shall commit any material breach of its obligations under (as the case may be) these Terms and Conditions or the Engagement Contract and (if such breach shall be capable of remedy) shall fail within 30 days of receipt of notice in writing served by the Service Provider requiring it so to do, to make good such breach, including, but not limited to:
(i) a breach of Clause 3.2;
(ii) that, in the Service Provider's opinion, the Client cannot meet its payment obligations under (as the case may be) these Terms and Conditions or the Engagement Contract; and/or
(iii) where any member of Crestbridge has become aware that the Client or the Administered Body (or any of its officers or employees not provided by the Service Provider) is or may become subject in any part of the world to investigation by any judicial or regulatory authority or that criminal proceedings are instituted or threatened against the Client or the Administered Body.
9.2 The Client shall be entitled to terminate the Services:
9.2.1 by giving not less than 90 days' notice in writing to the Service Provider;
9.2.2 at any time by notice in writing to the Service Provider if the Service Provider becomes subject to a winding-up or liquidation (except for a summary winding-up or a voluntary liquidation for the purpose of reconstruction or amalgamation upon terms previously approved by the Client in writing) or becomes bankrupt or commits, makes, suffers, consents to or acquiesces in any other act or omission indicative of insolvency under the law of any relevant jurisdiction; or
9.2.3 at any time by notice in writing to the Service Provider if the Service Provider shall commit any material breach of its obligations under (as the case may be) these Terms and Conditions or the Engagement Contract and (if such breach shall be capable of remedy) shall fail within 30 days of receipt of notice in writing served by the Client requiring it so to do, to make good such breach.
9.3 Upon termination of the Services for any reason, the Client shall immediately provide details of the new service provider which shall be required in order to maintain the Administered Body in good standing under the laws of its jurisdiction and shall provide an address to which the Service Provider may transfer all books and records of the Administered Body. In the event that the relevant information in relation to any new service provider is not provided to the Service Provider by the date on which the notice to terminate the Services takes effect, the Service Provider reserves the right (to the extent permitted by applicable law) to withdraw Services without appointment of any replacement service provider and to arrange for the resignation of any directors and secretary of the Administered Body provided by the Service Provider without the appointment of successors. The Service Provider further reserves the right to transfer any shares or interests in the Client held by nominees into the name of the beneficial owner of such interests without liability for consequential loss, howsoever caused.
9.4 Subject to the Service Provider's obligations pursuant to any laws regulations or guidelines applicable to it, after termination of the Services the Service Provider shall as soon as reasonably practicable thereafter deliver up to the Client all the books and records of the Administered Body in its possession provided that where any such books and records are kept in the memory unit of a computer, the Service Provider's obligations under this Clause shall be satisfied by the delivery of such information on discs or other appropriate magnetic material or electronic storage media, together with written information as to the form in which such discs or other storage media have been prepared in sufficient detail to permit a conversion programme to be prepared and provided further that the Service Provider shall have a lien against and shall not be required to make delivery of such books and records until full payment has been made to the Service Provider for all remuneration and expenses due to it hereunder (including costs associated with the delivery of such books and records as aforesaid).
9.5 The termination of the Services under this Clause shall be without prejudice to the rights of the Client or the Service Provider in respect of any antecedent breach of (as the case may be) these Terms and Conditions or the Engagement Contract and in particular, shall be without prejudice to the entitlement of the Service Provider to receive all fees and other monies accrued and due up to the date of termination of the Services and without prejudice to any right of the Service Provider to claim under the indemnities set out in Clause 7.
9.6 In the event that Services are terminated, the Service Provider shall procure that each person whom the Service Provider has procured to act as a director and/or secretary of the Administered Body shall resign as soon as reasonably practicable thereafter and the Service Provider shall use its reasonable endeavours to procure that each such person shall acknowledge in writing that he has no claim against the Administered Body.
10.1 Any notice to be given pursuant to these Terms and Conditions or the Engagement Contract shall be in writing addressed to the person concerned at such address or on such facsimile number or e-mail address from time to time notified to the other for the purpose, failing which the registered office or the last known usual address of such person.
10.2 Any such notice or other communication, if given as provided in Clause 10.1, shall be deemed to have been served on the person to which it is addressed:
10.2.1 if delivered by hand or commercial courier, where the delivery occurs before 17.00 hours (Jersey time) on a Business Day, on the day of delivery and in any other case on the Business Day next following the day of delivery;
10.2.2 if sent by ordinary prepaid post, on the second day following the day of posting unless such day is not a Business Day in which case it shall be deemed to have been served on the next following Business Day;
10.2.3 in the case of a facsimile or e-mail transmission, where transmission occurs before 17.00 hours (Jersey time) on a Business Day, on the day of transmission and in any other case, on the Business Day following the day of transmission provided that the person sending a facsimile shall have received a transmission receipt confirming a successful transmission thereof.
11. VARIATION AND WAIVER
11.1 Save as provided in Clause 11.2, no variation or waiver of any provision of the Engagement Contract shall be effective unless it is in writing and signed by (or by some person duly authorised by) the Client and the Service Provider.
11.2 The Service Provider reserves the right to vary these Terms and Conditions from time to time including during the course of the provision of the Services. Where these Terms of Business are varied in the course of the provision of these Services, the Service Provider shall use its reasonable efforts to draw all such variations to the attention of the Client as soon as practicable after the coming into force of any such variation and re-issue. Where such Terms of Business and any variation and re-issue thereof are published on the Crestbridge Website, at www.crestbridge.com, or such successor websites then such publication on the Crestbridge Website shall be deemed to have constituted sufficient notice to the Client of the variation and re-issue of these Terms of Business and the Client shall be duly bound by the Terms of Business as from time to time published on the Crestbridge Website.
11.3 No single or partial exercise of, or failure or delay in exercising, any right under (as the case may be) these Terms and Conditions or the Engagement Contract shall constitute a waiver or preclude any other or further exercise of that or any other right.
The invalidity or lack of enforceability of any part of (as the case may be) these Terms and Conditions or the Engagement Contract shall not prejudice or affect the validity or enforceability of the remainder.
13. INDEPENDENT CONTRACTOR
The Service Provider shall for the purposes of (as the case may be) these Terms and Conditions and the Engagement Contract be deemed to be an independent contractor and, unless otherwise expressly authorised pursuant to Proper Instructions, shall have no authority to act on behalf of, or to represent, the Client in any way or otherwise be deemed to be an agent of the Client or to have the power to enter into any transaction on behalf of the Client or to bind the Client.
14. NON-EXCLUSIVE APPOINTMENT
The Service Provider shall be entitled to provide services of a like nature to those to be provided by the Service Provider under (as the case may be) these Terms and Conditions or the Engagement Contract to any other person. The Service Provider shall not be deemed to be affected with notice of or to be under any duty to disclose to the Client or the Administered Body any fact or matter which may come to the notice of the Service Provider or any Employee in the course of the Service Provider rendering similar services to other persons or in the course of business in any other capacity or in any manner whatsoever otherwise than in the course of carrying out its duties hereunder.
15. INTERESTS OF THE SERVICE PROVIDER
15.1 Nothing contained in (as the case may be) these Terms and Conditions or the Engagement Contract shall prevent the Service Provider or Crestbridge (or its shareholders) or any of the Employees (each an "Interested Party"):
15.1.1 from contracting or entering into any financial, banking, commercial, advisory or other transaction with the Administered Body or any associate thereof; or
15.1.2 from being interested in any such contract or transaction and such Interested Party.
15.2 The Service Provider and the members of Crestbridge shall be entitled to retain for themselves any benefit, whether direct or indirect, arising out of or in connection with the Services including without limitation any fees or other remuneration or benefits obtained:
15.2.1 on any purchase or sale of investments, or
15.2.2 by reason of the Service Provider, any member of Crestbridge or an Employee acting (including, without limitation, as manager, administrator, custodian, trustee, director, officer, shareholder or adviser) for or in connection with any company, partnership, investment fund, scheme or other entity the shares, interests, notes or units of which are comprised in the assets of the Administered Body; or
15.2.3 under any banking, investment advisory or other arrangement entered into on behalf of the Administered Body; or
15.2.4 in respect of the provision of any other services to or in connection with the Administered Body.
16.1 The Service Provider may assign or transfer the whole or any part of its rights and benefits under (as the case may be) these Terms and Conditions or the Engagement Contract. For the purpose of any such assignment or transfer, the Service Provider may disclose information about the Administered Body to any prospective assignee or transferee, provided that the Service Provider shall use its reasonable endeavours to procure that such prospective assignee or transferee is placed under an obligation of non-disclosure equivalent to that in Clause 8.
16.2 The Client shall not assign or transfer all or any part of its rights, benefits and/or obligations under (as the case may be) these Terms and Conditions or the Engagement Contract.
17. FORCE MAJEURE
None of the Service Provider, any member of Crestbridge or the Employees shall be held liable for any failure or delay in the performance of its obligations in connection with the Services arising out of or in connection with circumstances beyond its reasonable control (including, without limitation, acts of God, natural disaster, civil or military disturbances, acts of terrorism, outbreaks of war, act of government or any other authority, accidents, labour disputes or any power, telecommunications or computer failure).
18. DATA PROTECTION
18.1 The Client agrees that the Service Provider and any member of Crestbridge may hold and process electronically, manually or otherwise any information (including Personal Data and sensitive Personal Data) ("Personal Information") as set out in these Terms and Conditions, in the terms of any Engagement Contract and or in accordance with the Privacy Statement set out at www.crestbridge.com as amended from time to time (the "Privacy Statement").
18.2 Prior to disclosing (or authorising the disclosure) of any Personal Information to the Service Provider and any member of Crestbridge, the Client shall ensure that it has a lawful basis to permit such disclosure to the Service Provider and any member of Crestbridge for the purposes of any of the Service Provider and any member of Crestbridge processing such Information for the purposes set out in the Privacy Statement from time to time. For the purposes of this clause 18.2, "lawful basis" may include but not be limited to obtaining all and any necessary consents in order to enable the lawful processing of the Personal Information, and for ensuring that a record of such consents is maintained. Should any relevant consent be revoked by a Data Subject:
(a) the Client shall be responsible for communicating the fact of such revocation to the Service Provider; and
(b) neither the Service Provider or any member of Crestbridge shall be liable for any additional costs, claims or expenses arising from any disruption or delay to any Service as a result of the withdrawal of such consent.
18.3 The Client shall comply in all respects with the applicable Data Protection Laws in performing its obligations under or pursuant to these Terms and Conditions or in relation to any Engagement Contract and shall, in particular (and shall ensure that its directors, employees, agents and affiliates shall):
(a) comply with applicable Data Protection Laws in relation to any Personal Information that is processed by either Party under or in connection with these Terms and Conditions;.
(b) bring the Privacy Statement to the attention of any underlying Data Subjects on whose behalf or account the Client may act or whose Personal Information will be disclosed to Crestbridge by virtue of this Agreement, including any of the Client's affiliates, advisers, representatives, office holders, employees, beneficial owners or agents; and
(c) assist Crestbridge with its responsibilities under applicable Data Protection Legislation, especially with regard to the exercising of Data Subjects' rights.
18.4 With effect from 25 May 2018, the terms set out in Schedule 1 shall apply to the processing of Personal Information by the Service Provider and Crestbridge where they are appointed as a Processor pursuant to any Engagement Contract. The terms set out in Schedule 1 shall have effect in place of any terms relating to data protection in any Engagement Contract.
19. DELEGATION AND OUTSOURCING
19.1 In the performance of the Services, the Service Provider may delegate the whole or any part of its powers, duties, discretions and functions hereunder to:
19.1.1 any member or Employee of Crestbridge; or
19.1.2 with the prior consent in writing of the Client, any other person as the Service Provider may think fit (such delegation shall include the power to sub-delegate).
19.2 The Service Provider shall not be liable for any loss to the Client or the Administered Body arising from the negligence, fraud or wilful misconduct of any delegate appointed pursuant to Clause 19.1.2 provided such appointment or continuation thereof was made in good faith.
20. SAFE CUSTODY AND DOCUMENT RETENTION
20.1 The Service Provider will keep all such deeds and other documents which it considers appropriate, or where it is requested by the Client to do so, in its safe custody facilities. These facilities are carefully regulated and controlled and designed to limit the possibility of unauthorised access or damage by fire. In the absence of gross negligence, the Service Provider accepts no responsibility for any deeds or documents held in safe custody that are damaged or lost as a result of theft, fire or water damage.
20.2 Where the Service Provider retains originals or copies of any documents belonging to the Client or the Administered Body following the termination of the Services, the Service Provider reserves the right (but shall not be under an obligation):
20.2.1 to retain such copies for a period of ten years from the date of the termination of the Services and thereafter to destroy all such documents (whether originals, photocopies or electronic copies) at such times as the Service Provider in its sole discretion considers appropriate;
20.2.2 (without prejudice to Clause 20.2.1) to make electronic copies of all such documents as the Service Provider has retained and reserves the right to destroy hard copies of all such documents that the Service Provider has retained.
21. REGULATION AND COMPLAINTS PROCEDURE
21.1 The Service Provider and certain members of Crestbridge are regulated by the Jersey Financial Services Commission in the conduct of its Jersey trust company business and fund services business under the Financial Services (Jersey) Law 1998 (as amended). A full list of such regulated entities is available on request.
21.2 In case the Client is not satisfied with the Services provided by the Service Provider, the Service Provider has established a complaints procedure. In the first instance, the Client should write to the Service Provider detailing its complaint. Crestbridge reserve the right to determine whether a question or comment raised by an Administered Body or Client amounts to a complaint unless the Administered Body or Client specifically notify Crestbridge that the item raised is a complaint.
21.3 Unless expressly agreed with the Client to the contrary, Crestbridge will provide a written acknowledgment to the Client within 5 working days of receipt of a complaint confirming that the complaint has been received and is being considered. Crestbridge will thoroughly investigate the complaint and keep the Client informed about the progress of their complaint, including the details of any actions being taken to resolve their complaint, and will advise the Client in writing when it considers the complaint to be closed. If the complaint is not upheld Crestbridge will clearly state to the Client the reason(s) for rejecting the complaint.
21.4 If after taking action the Client is still dissatisfied, a further complaint may be made to the Jersey Financial Services Commission, PO Box 267, St Helier, Jersey (www.jerseyfsc.org).
22. GOVERNING LAW
These Terms & Conditions shall be governed by and construed in accordance with the laws of the Island of Jersey and the Service Provider and the Client irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Courts of the Island of Jersey in connection herewith.
1.1 In this Schedule 1 the terms have the meaning ascribed to them below:
means (from time to time) an entity that owns or controls, is owned or controlled by or is under common control or ownership with the Service Provider, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise;
means any law or regulation applicable to Service Provider, its Affiliates or, its Approved Sub-Processors including the Data Protection Laws;
Approved Sub- Processor
means each (i) Affiliate (i) Existing Sub-Processor; and (ii) New Sub-Processor to the extent that each of (i), (ii) and (iii) meet the conditions set out in Clause 5.5;
means any data (including Personal Data) provided to the Service Provider or any Approved Sub-Processor by the Client in connection with the Engagement Contract(s);
Data Subject Request
means a request made by a Data Subject to exercise any rights of Data Subjects under Data Protection Laws;
Data Protection Laws
means any applicable law regarding the processing, privacy, and use of Personal Data, as applicable to the Client, Service Provider and its Affiliates and/or any Approved Sub-Processor relating to the services provided to the Client, including:
(a) laws and regulations of the European Union, the European Economic Area and their member states, including the United Kingdom and
(b) applicable laws and regulations of jurisdictions outside of the European Union and/European Area including without limitation Jersey and the Cayman Islands and Bahrain.
means any third party, joint venture or Affiliate to which Service Provider has, at the Effective Date:
(a) delegated or outsourced all or part of the services; and/or
(b) transferred Client Data (including Personal Data), in each case pursuant to the terms of the Engagement Contracts;
means EU General Data Protection Regulation (EU) 2016/679;
means any third party, joint venture or Affiliate other than an Existing Sub-Processor to which Service Provider wishes to delegate the processing of Personal Data pursuant to an Engagement Contract;
Client Personal Data
means any Personal Data processed by Service Provider or an Approved Sub-Processor on behalf of the Client pursuant to or in connection with each Engagement Contract;
means any transfer of Personal Data from Service Provider to any New Sub-Processor where such transfer would be prohibited by Data Protection Laws in the absence of standard data protection clauses adopted by the EU Commission (EU Model Clauses) being executed or another safeguard envisaged by Article 46 of the GDPR being implemented;
means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws.
1.2 In this Schedule 1:
1.3 “Controller", "Processor", "Data Subject", "Personal Data", "Special Categories of Personal Data", "Processing", "Sub-Processor" and "Appropriate Technical and Organisational Measures" shall have the meanings given to them in the GDPR;
1.4 references to any Applicable Laws (including to the Data Protection Laws and each of them) and to terms defined in such Applicable Laws shall be replaced with or incorporate (as the case may be) references to any Applicable Laws replacing, amending, extending, re-enacting or consolidating such Applicable Law and the equivalent terms defined in such Applicable Laws, once in force and applicable;
1.5 a reference to a law includes all subordinate legislation made under that law; and
1.6 this Schedule 1 shall survive termination (for any reason) or expiry of any of the Engagement Contracts.
Effective Date and Affect of Terms
2.1 The effective date of this Schedule 1 shall be 25 May 2018 (the “Effective Date”).
2.2 The terms of this Schedule 1 shall be deemed to form part of the Engagement Contract and shall have effect in place of any terms relating to data protection set out therein.
2.3 In the event of any conflict between the terms of the Engagement Contract and this Schedule 1, the terms imposing a higher standard of protection in relation to Personal Data shall prevail.
2.4 Except as modified by this Schedule 1, the terms of the Engagement Contract shall remain in full force and effect.
3.1 The Service Provider shall and shall procure that each Approved Sub-Processor shall:
3.1.1 comply with all applicable Data Protection Laws when processing Personal Data; and
3.1.2 only process Personal Data in accordance with the Client’s documented instructions as set out in the Engagement Contract , or in any other document or correspondence or as set out in this Schedule 1, unless processing is required by an Applicable Law to which Service Provider or Approved Sub-Processor is subject.
3.2 The Client:
3.2.1 instructs and grants a general written authorisation for the Service Provider and each Approved Sub-Processor to process Personal Data and to transfer Personal Data to any country or territory as reasonably necessary for the provision of services pursuant to the Engagement Contract(s);
3.2.2 warrants and represents that it is and will at all times (i) remain duly and effectively authorised to give the instruction set out in Clause 3.2.1 and (ii) have in place all fair processing notices and (where applicable) consent mechanisms for Data Subjects sufficient to ensure that all processing of Personal Data envisaged by this Schedule 1 and each Engagement Contract will be lawful.
3.3 Each Engagement Contract shall set out details required by Article 28(3) of the GDPR, specifically:
3.3.1 The subject matter and duration of the Processing of the Personal Data;
3.3.2 The nature and purpose of the Processing of the Personal Data;
3.3.3 The types of the Personal Data to be Processed;
3.3.4 The categories of Data Subject to whom the Personal Data relates; and
3.3.5 The obligations and rights of the Data Controller
Technical and Organisational Measures and Security
4.1 The Service Provider shall and shall procure that each Approved Sub-Processor shall implement and maintain, Appropriate Technical and Organisational Measures in relation to the processing of Personal Data by such Service Provider or Approved Sub-Processor to ensure a level of security appropriate to that risk.
4.2 The Service Provider shall take reasonable steps to ensure the reliability of any employee, agent or contractor of Service Provider or any Approved Sub-Processor who may have access to the Personal Data, ensuring that all such individuals are subject to confidentiality undertakings or other contractual, professional or statutory obligations of confidentiality.
5.1 The Service Provider shall only use Approved Sub-Processors to process Personal Data.
5.2 The Service Provider may continue to use its Existing Sub-Processors but shall procure that, on or prior to the Effective Date, the arrangement between it and each of its Existing Sub-Processors is governed by a written contract including terms which offer at least the same level of protection for Personal Data as set out in this Schedule 1 and which meet the requirements of Article 28(3) of the GDPR.
5.3 The Service Provider shall give the Client prior notice of the appointment of any New Sub-Processor, including details of the processing of Personal Data to be undertaken by such New Sub-Processor.
5.4 Each New Sub-Processor shall become an Approved Sub-Processor on the completion of:
5.4.1 the Service Provider providing notice to the Client as envisaged by Clause 5.3 above; and
5.4.2 satisfaction of Clause 5.5 below in respect of that New Sub-Processor.
5.5 With respect to each New Sub-Processor, the Service Provider shall ensure that the arrangement between Service Provider and the New Sub-Processor is governed by a written contract including terms which offer at least the same level of protection for Personal Data as those set out in this Schedule 1 and which meet the requirements of Article 28(3) of the GDPR.
Service Provider as Controller
6.1 Notwithstanding any other Clause in this Schedule 1, the Parties agree that, where the Service Provider or an Approved Sub-Processor determines the means or purpose of processing the Personal Data, the Service Provider or such Approved Sub-Processor shall be acting as a data controller in relation to the Personal Data and not as a data processor.
6.2 Where the Service Provider or an Approved Sub-Processor acts as data controller in relation to the Client Personal Data, it shall comply with all applicable Data Protection Laws.
6.3 For the avoidance of doubt, the Parties acknowledge that the Service Provider and each Approved Sub-Processor acts as a data controller when it is conducting activity required to comply with:
6.3.1 Applicable Laws (such as but not limited to conducting checks for anti-money laundering purposes and conducting sanctions screening, in each case which Service Provider is required to conduct under applicable laws, regulation or internal policies); and
6.3.2 any request made by any financial services regulator or other public authority or governmental body having jurisdiction over Service Provider or an Approved Sub-Processor..
6.4 Where any Service Provider acts as a data controller, it shall provide the Client with a fair processing notice in order to facilitate the Client providing a fair processing notice to the relevant underlying Data Subjects and the Client shall provide such assistance as Service Provider requires in complying with Applicable Laws.
Data Subject Rights
7.1 The Service Provider shall at the cost of the Client:
7.1.1 assist the Client by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client's obligations, as reasonably understood by Service Provider, to respond to requests to exercise Data Subject rights under the Data Protection Laws;
7.1.2 promptly notify the Client if it or any Approved Sub-Processor receives a Data Subject Request under any Data Protection Law in respect of any Client Personal Data; and
7.1.3 not respond and procure that any relevant Approved Sub-Processor does not respond to a Data Subject Request except on the documented instructions of the Client or as required by Applicable Laws to which Service Provider or Approved Sub-Processor is subject, in which case the Service Provider shall to the extent permitted by Applicable Law inform the Client of that legal requirement prior to responding to the request.
Data Protection Impact Assessments and Audit
8.1 The Service Provider shall at the cost of the Client:
8.1.1 provide reasonable assistance to the Client with any data protection impact assessment which the Client is required to undertake in order to Comply with Articles 35 and 36 of the GDPR and prior consultations with Supervising Authorities or other competent data privacy authorities to the extent required under Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law; and
8.1.2 make available to the Client on request such information as is reasonably necessary to demonstrate its compliance with this Schedule 1 and shall reasonably allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client and approved by Service Provider for the purpose of demonstrating compliance by such Service Provider with its obligations under Data Protection Laws and in respect of the Client Personal Data.
8.2 The information and audit rights set out in this Clause 8 only arise to the extent that the relevant Engagement Contract does not otherwise include an obligation to provide the Client with information and audit rights meeting the requirements of applicable Data Protection Laws (including Article 28(3) of the GDPR).
8.3 The Client shall:
8.3.1 give Service Provider reasonable notice of any audit or inspection to be conducted under Clause 8.1.2 above;
8.3.2 make (and ensure that each of its mandated auditors makes) reasonable endeavours to avoid causing any damage, injury or disruption the business of Service Provider or the Approved Sub-Processors in the course of any audit or inspection in relation to Data Protection Laws; and
8.3.3 not require audits or inspections to be carried out more frequently than once in any 12 month period and shall ensure that appropriate confidentiality provisions are agreed between Service Provider and any third party involved in audit or inspection.
Incident And Breach Notification
9.1 Service Provider shall, on becoming aware of a Personal Data Breach:
9.1.1 notify the Client without undue delay; and
9.1.2 following such notification, cooperate with the Client and take such reasonable commercial steps as are directed by the Client to assist in the investigation, mitigation and remediation of such Personal Data Breach.
Deletion Or Return Of Client Personal Data
10.1 Subject to Clause 10.2 below and save as may be set out in any Engagement Contract, the Service Provider shall promptly and to the extent technically possible on the Client’s written request, delete and procure the deletion of all copies of the Client Personal Data after processing by Service Provider of any Protected Data is no longer required for the purpose of Service Provider's performance of its relevant obligations under this Schedule 1 or the Engagement Contract(s).
10.2 Notwithstanding Clause 10.1 above, the Service Provider and each Approved Sub-Processor may retain Client Personal Data to the extent required by and for such period as required by Applicable Laws.
11.1 The Parties hereby submit to the choice of jurisdiction stipulated in each Engagement Contract with respect to any disputes or claims howsoever arising under this Schedule 1 in relation to the processing of Client Personal Data pursuant to the relevant Engagement Contract.
11.2 This Schedule 1 and all non-contractual or other obligations arising out of or in connection with it are governed by the laws of the country or territory stipulated in the relevant Engagement Contract.