ABACAI LTD – GENERAL TERMS OF BUSINESS
DEFINITIONS AND INTERPRETATION
- (a) In these General Terms of Business: Abacai means Abacai Ltd, a company incorporated in England and Wales on 12 November 2018 with company number 11674768; Abacai Privacy Notice means the privacy notice appended to these General Terms of Business; Agent means any person appointed by the Client as agent, adviser, or other intermediary for that Client and who interacts with Abacai on behalf of that Client in connection with the Services provided, or to be provided, by Abacai to that Client; Business Day means a day (other than a Saturday or a Sunday) on which banks are open for business in England and Wales; Client means any person for whom Abacai has agreed to provide, or arrange the provision of, Services, who is or are name as such in any Engagement Terms; Engagement Terms means any terms agreed between the Client and Abacai under which Abacai is appointed to provide, or arrange provision of, any Services to or on behalf of that Client and includes these General Terms of Business (as may be amended from time to time) and any engagement letter; Indemnified Person means Abacai and any director, officer, employee or agent of Abacai and, in each case, includes their successors and assigns; Regulations means any applicable law, order, rule of court, regulation or other rule, standard or code of conduct from time to time, where compliance with such is mandatory for Abacai in England when providing the Services; and Services means the services which Abacai has agreed with the Client (or any Agent on behalf of that Client) to provide or arrange provision of.
- (b) In these General Terms of Business:
- (i) words in the singular include the plural and vice versa;
- (ii) references to one gender include all genders;
- (iii) headings are used for convenience only and do not affect the construction or interpretation of these General Terms of Business;
- (iv) general words do not have a restricted meaning because they are preceded or followed by specific words indicating a particular type, class or category; and
- (v) if a word or phrase is defined, its other grammatical forms have a corresponding meaning.
- (a) Abacai will provide, or arrange the provision of, the Services to the Client in accordance with all Regulations.
- (b) If the Client comprises more than one person, the obligations of those persons under the Engagement Terms are joint and several.
- (c) Any engagement of Abacai to provide, or arrange the provision of, any Services is subject to receipt of any requested payment on account of any fees and/or disbursements of Abacai.
- (a) Abacai is entitled to accept instructions on behalf of the Client (whether written or otherwise) from any person believed by Abacai (acting reasonably) to be acting on behalf of that Client. Where the Client asks Abacai to take instructions on the Client’s behalf from a third party or Abacai accepts instructions on behalf of the Client from any person believed by Abacai (acting reasonably) to be acting on behalf of that Client, until the Client notifies Abacai in writing to the contrary, Abacai will be entitled to act on any instructions given by that third party as if they were given by the Client and the Client agrees to indemnify Abacai against any claim that the third party was not entitled to act or give instructions on the Client’s behalf or that Abacai were not entitled to act on any such instructions.
- (b) Where the Client comprises more than one person, Abacai is entitled to rely on the instructions of any one such person. Where the Client is a legal person or body corporate, Abacai is entitled to rely on the instructions of any officer (or equivalent) of the legal person or body corporate.
- (c) Where any instruction, request, communication or advice on behalf of the Client is not in writing, Abacai shall not be liable or responsible for:
- (i) any failure to comply wholly or partly with such instruction, request, communication or advice;
- (ii) any lack of clarity, contradiction, incompleteness, ambiguity or errors contained in such instruction, request, communication or advice (in the opinion of Abacai, acting reasonably);
- (iii) the non-receipt or delay of any such instruction, request, communication or advice; or
- (iv) any lack of authority on the part of the person purportedly giving or making such instruction, request, communication or advice to Abacai, provided Abacai has acted reasonably in determining whether it can accept such instructions, requests, communications or advice in accordance with clause 3(a).
- (d) Where any instruction, request, communication or advice on behalf of the Client is in writing, Abacai shall not be liable or responsible for any of the matters referred to in clause 3(c) above in the absence of negligence on the part of Abacai.
- (e) Where Abacai receives a document executed using an electronic signature by a Client and/or Agent, Abacai is entitled to assume that the use by the relevant party of such electronic signature is in compliance with all relevant laws, regulations and constitutional documents and there is no prohibition or restriction on the use of such electronic signatures which may impact on the validity or enforceability of such document.
(f) Nothing in any Engagement Terms shall limit the manner in which Abacai will exercise discretionary powers vested in Abacai by any Client for that Client’s benefit or otherwise in connection with the Services.
4. SPECIFIC AUTHORITY
- (a) In the event that:
- (i) any demand is made against the Client for payment of any sum due including but not limited to any taxes, duties, fees or other governmental or state impositions and such payment has not yet been made; or
- (ii) Abacai required instructions from the client and/or Agent and has been unable to obtain instructions which Abacai, acting reasonably, considers (in its sole and absolute discretion) to be proper; or
- (iii) Abacai has received instructions from the Client and/or Agent which, in Abacai’s opinion are or may be illegal or which may lead to Abacai or any Indemnified Person incurring personal liability; or
- (iv) Abacai refuses, suspends, delays or defers the provision of the Services or any aspect thereof or the acceptance or implementation of any instruction given by or on behalf of the Client and/or Agent, in accordance with clause 16 (Suspension),
- (b) In the events described above, Abacai may:
(i) take no further action in relation to the Client; or
(c) Abacai will, as soon as reasonably practicable after taking any action under this clause 4 (Specific Authority), give notice to the Client or the beneficial owner of the Client (as appropriate) of such action having been taken.
(d) No liability shall attach to Abacai in respect of, or arising out of, any action or inaction which is in accordance with the provisions of this clause 4 (Specific Authority), provided that Abacai has not acted negligently in relation to such action or inaction.
5. FEES AND DISBURSEMENTS
- (a) Abacai shall be entitled to charge the Client:
- (i) the fees for providing, or arranging provision of, the Services; and
- (ii) as a disbursement, any costs or expenses incurred by Abacai in providing the Services.
- (b) These fees and disbursements will be charged on the basis specified in the Engagement Terms, or as otherwise expressly agreed with the Client.
- (c) Fees and/or disbursements which are paid by, or in respect of, the Client shall be non- refundable in all circumstances, including the termination of the Engagement Terms, unless such termination was occasioned by the fraud, negligence or wilful default of Abacai, or unless otherwise agreed between Abacai and the Client.
(d) To the extent that Abacai has, with the prior written consent of the Client, instructed or appointed a third party in connection with the provision of any Services to the Client, that Client shall be solely responsible for the costs of such third party.
6. UNDERTAKINGS – BRIBERY, CORRUPTION AND TAX EVASION
- (a) The Client acknowledges that:
- (i) Abacai is committed to guarding against all forms of criminal activity, including in particular by complying with local and international laws relating to the prevention and countering of corruption, bribery and tax evasion. Abacai expects transparency and integrity in all of its business dealings; and
- (ii) where other professional advice has been taken by the Client, or in respect of the Client, Abacai does not have any duty of care to check that such advice remains complete and up to date, nor shall Abacai be liable for, or accept any responsibility for, the consequences of such advice or the lack of such advice.
- (b) The Client confirms, undertakes and covenants that:
- (i) all assets which are or will be introduced to the Client have been or will be lawfully introduced and are not derived from or otherwise connected with any illegal activity;
- (ii) the Client has not been and will not be engaged or involved directly or indirectly in any unlawful activity or be used for any unlawful purpose and the Client will keep Abacai adequately informed as to all business to be transacted in the name of or for the Client’s account and will use its best endeavours to ensure that the Client is run in a proper and business-like manner and complies with all applicable laws and regulations from time to time in force;
- (iii) the Client shall comply with all filing requirements in any applicable jurisdiction and all taxes and governmental duties payable by the Client will be promptly discharged;
- (iv) neither the Client, nor any employee, subsidiary, agent, service provider, beneficial owner and controller of the Client, or any person under common control or ownership with the Client has (to the knowledge of the Client) breached any local or international law relating to the prevention and countering of corruption, bribery or tax evasion at any time;
- (v) for so long as the Services are being provided the Client and (to the knowledge of the Client) its beneficial owners and controllers or any person under common control or ownership with the Client, will not engage in any activity, practice or conduct which could facilitate tax evasion, create any improper business advantage or give the appearance of questionable business conduct;
- (vi) to the extent the Client is a body corporate which has any directors that are not provided by Abacai, the Client and (to the knowledge of the Client) its beneficial owners and controllers, or any person under common control or ownership with the Client, will have in place and maintain (throughout the period during which the Services are provided) appropriate policies and procedures (which can be enforced where applicable), including (but not limited to) adequate procedures under the UK Bribery Act 2010 and in relation to the prevention of tax evasion;
- (vii) the Client agrees to notify Abacai promptly in the event that the Client or any employee, subsidiary, agent, service provider, beneficial owner and controller of the Client, or any person under common control or ownership with the Client is investigated, prosecuted, charged or convicted of any offence under local or
international corruption, anti-bribery or tax evasion laws (to the knowledge of the Client);
- (viii) no instructions given to Abacai will require or involve any unlawful act or contain any falsehood and all information given to Abacai will be accurate, complete and not misleading;
- (ix) the Client shall promptly provide Abacai with all information (including all documents and evidence) concerning the Client and its business, its beneficial owners and controllers, and any persons under common control or ownership with the Client, where such information is reasonably requested by Abacai, in order that Abacai can continue to provide, or arrange provision of, the Services;
- (x) Abacai may disclose information in connection with the Client, its owner(s) and its affairs to the extent that doing so is desirable, necessary or required in accordance with its legal or regulatory obligations or best practice including without limitation pursuant to any Regulations relating to drug trafficking, money laundering, terrorist financing and the UK’s beneficial ownership disclosure rules for persons with significant control. In the event that disclosure is made in accordance with this provision, Abacai shall have no obligation to inform the Client regarding any such disclosure; and
- (xi) it has no connection to any sanctioned entities, individuals, or activities pursuant to any applicable sanctions regime (including any United Nations, European Union or Office of Foreign Asset Control sanctions) and no activity will be undertaken by the Client in any jurisdiction in respect of which such sanctions are in place.
- UNDERTAKINGS – GENERAL In addition, the Client confirms, undertakes and covenants that:
- (a) the Client will not be used in any manner contrary to any applicable code of dealing in securities; and
- (b) the Client will give prior notice to Abacai of any change of beneficial ownership or control of the Client.
- LIABILITY AND INDEMNITY
- (a) Notwithstanding any termination of any Engagement Terms, no Indemnified Person shall be liable to the Client, whether in contract, tort (including negligence), breach of fiduciary duty or otherwise except to the extent such liability, loss, cost or expense is caused by the fraud, negligence or wilful default of that Indemnified Person.
- (b) Except in the case of fraud or wilful default on the part of an Indemnified Person, the maximum liability of an Indemnified Person, whether in contract, tort (including negligence), breach of fiduciary duty or otherwise, arising out of or in connection with the Engagement Terms and/or the provision of the Services, is limited in total to the amount of fees actually paid by or in respect of the Client to Abacai during the 12 month period immediately preceding the event giving rise to any claim.
- (c) The obligations of Abacai pursuant to these Engagement Terms are solely the corporate obligations of Abacai and, to the extent permitted by law, no recourse shall be had in respect of any obligation or claim arising out of or based upon the provision of the Services against any director, officer, employee or agent of Abacai.
- (d) Any claim relating to the liability of Abacai or any other Indemnified Person in connection with these Engagement Terms, must be notified to Abacai within 12 months of the date upon which the relevant circumstances purportedly giving rise to the claim occurred.
- (e) The Client shall, promptly on demand, indemnify (on a full indemnity basis), and hold harmless each Indemnified Person against any liability, loss, cost or expense of any kind:
- (i) which any Indemnified Person incurs; or
- (ii) to which any Indemnified Person may become subject, as a result of entering into, or performing, any Engagement Terms with that Client or performing any Services for that Client. This indemnity shall not apply to the extent that a claim under it results from the relevant Indemnified Person’s fraud, negligence or wilful default.
- (f) Nothing in these Engagement Terms shall limit or exclude the liability of any person that cannot be limited or excluded under applicable law.
9. COMMUNICATION AND NOTICES
- (a) Abacai may communicate or correspond with the Client (and any Agent) in writing (including by web-based software, by publication on Abacai’s website or by e-mail), in person and/or by telephone and Abacai accepts no liability for any data corruption, interception, computer viruses or similar issues which may arise from that communication or correspondence provided that, where any communication or correspondence is made by Abacai, it has taken reasonable care in making such communication or correspondence.
- (b) Any notice given under or in connection with any Engagement Terms:
- (i) shall be made in writing (which unless otherwise stated, can include by email, website, fax or letter). The address and e-mail address of the Client and Abacai are as stated in the engagement letter between that Client and Abacai (or, in each case, any substitute contact details provided in writing from time to time on not less than 10 Business Days’ notice). The website of Abacai is www.abacai.co.uk; and
- (ii) must be in English or, if not in English, accompanied by a certified English translation (which will prevail unless the document is a constitutional, statutory or other official document).
- (c) All notices sent pursuant to any Engagement Terms shall be deemed to have been received:
- (i) if sent by way of electronic means, at the time of transmission or publication;
- (ii) if sent by hand, at the time the notice is left at the address stated in paragraph (b), above; or
(ii) if sent by post, at the time recorded by the delivery service or five Business Days after posting (whichever is the earlier).
(d) By entering into the Engagement Terms, the Client acknowledges that the use of email carries certain risks and that confidentiality may be breached or messages may be lost or delayed. Abacai shall not have any liability to the Client or to any third party as a result of e-mailing the Client or with any third party in relation to the Client’s matters.
Abacai accepts no liability in respect of any claim or loss arising in connection with such communications.
- DATA PROTECTION AND CONFIDENTIALITY
- (a) Abacai is committed to ensuring Client data is kept confidential and held in accordance with data protection legislation. Abacai will keep information and documentation entrusted to Abacai confidential, subject to any duties or obligations imposed on Abacai by Regulations. Abacai may disclose any relevant aspect of the Client’s affairs to the Client’s other professional advisors, unless the Client requests Abacai, in writing, not to do so.
- (b) The Abacai Privacy Notice is appended to the Schedule of these General Terms of Business and details how Abacai processes data and the rights of individuals in respect of their data.
- (c) The Client must ensure that the Abacai Privacy Notice is provided to any individuals whose personal data is provided to Abacai by the Client and the Client is satisfied that there is a legitimate basis under any applicable data protection legislation for providing such personal data to Abacai.
- (d) The primary data controller in relation to this engagement is Abacai.
- DOCUMENT RETENTION Abacai is entitled to:
- (a) retain (and take copies of) documents in the possession of Abacai as a result of providing any Services (notwithstanding any termination of any Engagement Terms); and
- (b) destroy any documents held by Abacai pursuant to any Engagement Terms from the date falling 11 years after the termination of the Engagement Terms.
- (a) The Client should raise any complaints in connection with the provision of any Services with a director of Abacai.
- (b) In the event that Abacai is required or considers it necessary or desirable to consult Abacai’s professional indemnity insurers or Abacai’s insurance brokers over work that it has done for the Client, Abacai may share with them with all necessary documents and information in Abacai’s possession in relation to that work, or any related matter.
- VARIATION Abacai reserves the right to vary the Engagement Terms at any time.
(a) Abacai may refuse, suspend, defer or delay the provision of the Services or any aspect of them, or the acceptance or implementation of any instruction given by or on behalf of
the Client and/or Agent, without terminating the Services in accordance with clause 15(b) (Termination), at any time if:
- (i) Abacai is required to do so in order to comply with Regulations or any orders of any competent court, regulatory or governmental authority;
- (ii) Abacai determines, in its sole and unfettered discretion, that failing to do so could breach, or could cause, Abacai to breach a legal requirement or expose Abacai to any risk of action, prosecution or civil or criminal liability or regulatory sanction in any jurisdiction by any court, government, regulator, police or other authority;
- (iii) any fees or disbursements remain outstanding for more than 30 days;
- (iv) a Force Majeure Event (as defined below) has occurred in accordance with clause 16 (Force Majeure); or
- (v) in the reasonable opinion of Abacai, the Client has failed to comply with its obligations under the Engagement Terms.
(b) In the event that Abacai decides to take any action described in paragraph (a) above, Abacai will not be obliged to notify the Client or provide reasons for such decision, nor will Abacai be liable for any loss, damage, cost or expense suffered by the Client as a result of such decision.
15. TERMINATION Termination by the Client
(a) The Client (or Agent on behalf of that Client) may terminate the Engagement Terms, or a Service as specified in the Engagement Terms immediately, by giving Abacai notice in writing, if Abacai has committed any material breach of its obligations under the Engagement Terms which either:
(i) is not capable of being remedied; or
(iii) is capable of being remedied, but Abacai has not remedied such breach within 21 days after receipt of notice served by that Client requiring that breach to be remedied.
Termination by Abacai
(b) Abacai may terminate all or any part of any Engagement Terms, including any Service as specified in the Engagement Terms by giving the Client notice (which may be immediate) in writing, if Abacai determines in its sole and absolute discretion that:
- (i) the Client is, or in Abacai’s reasonable opinion, is likely to become, insolvent or bankrupt or subject to any equivalent or similar procedure in any jurisdiction;
- (ii) the Client has committed any material breach of its obligations under the Engagement Terms (including, for the avoidance of doubt, a breach of any undertakings) which either:
(A) is not capable of being remedied; or
(B) is capable of being remedied, but the Client has not remedied such breach within 21 days after receipt of notice served by Abacai requiring that breach to be remedied;
- (iii) there has been a change of beneficial ownership or control of the Client without Abacai having received prior notice in accordance with clause 8(b);
- (iv) the Client has failed to comply with its obligations to provide information under clause 7(b)(ix);
- (v) the Client has or may have committed a money laundering offence, (including failing to comply promptly with our money laundering procedures), bribery, corruption, tax evasion, fraud or other criminal activity;
- (vi) the Client, a beneficial owner or controller of the Client, or any of the Client’s officers or employees not provided by Abacai is charged with any criminal offence or is the subject of any fiscal, judicial, regulatory or police investigation in any jurisdiction, including investigation, prosecution, charge or conviction under any local or international corruption and anti-bribery laws;
- (vii) it is necessary or appropriate to do so because a conflict of interest has arisen;
- (viii) the Client, or a beneficial owner or controller of the Client, becomes a person who is subject to, or engages in an activity which is the subject of sanctions;
- (ix) the provision of the Services to the Client might harm the reputation of Abacai; and/or
- (x) such termination is necessary for legal, regulatory or any other reasons.
Consequences of termination
(c) Any termination in accordance with this clause 15 (Termination) will not prejudice any contractual or other rights or duties between Abacai and the Client which exist at the time of such termination.
- (d) In the event of termination of this appointment, Abacai will have no obligation to forward mail, correspondence, notices, documents or any other items whatsoever received on the Client’s behalf and will accept no responsibility for or in connection with any legal proceedings, penalties, fines, liabilities, claims, costs or for any loss, damage, financial or commercial loss, expenses or incidental loss to the Client or to any other person resulting from the termination or from any failure to forward mail, correspondence, notices, documents or any other items whatsoever received on the Client’s behalf.
- (e) On the termination of its appointment under the Engagement Terms, Abacai shall deliver or procure to be delivered to the Client, or as the Client may direct, all books, records, and documents belonging to the Client which are in its possession or under its control, subject to the provisions of clause 11 (Document Retention) and provided always that Abacai shall not be required to make delivery of such books, records and documents until full payment has been made to Abacai for all remuneration and expenses due to it under the Engagement Terms (including any costs associated with the delivery of such books, records and documents).
16. FORCE MAJEURE
(a) Abacai shall not be liable for any failure or delay in providing any Services or in performing any of its obligations hereunder or for any losses of whatever kind and
wherever occurring as a result of events, circumstances or causes beyond the reasonable control of Abacai (a Force Majeure Event).
- (b) Abacai shall as soon as reasonably practicable notify the Client in writing of the reason for any failure or delay in providing any Services or in performing any of its obligations hereunder and (to the best of its knowledge) the likely duration of such failure or delay. Abacai shall take reasonable steps to overcome the failure or delay.
- (c) If Abacai has complied with clause 16(b), its performance under the Engagement Terms shall be suspended for the period that the Force Majeure Event continues and it will have an extension of time for performance equal to such period. In respect of the failure or delay arising from the Force Majeure Event:
- (i) Abacai shall take reasonable steps necessary to bring that event to a close or to find a solution by which its obligations under the Engagement Terms may be performed despite the Force Majeure Event; and
- (ii) if the Force Majeure Event continues for more than 90 consecutive days, either party may terminate the Engagement Terms with immediate effect by giving written notice to the other party and neither shall be liable to the other for such termination.
- OUTSOURCING AND DELEGATION
- (a) Subject to the Regulations, Abacai shall be entitled to outsource or delegate the whole or any part of its duties undertaken pursuant to the provision, or arranging of the provision, of the Services under the Engagement Terms.
- (b) Abacai shall have no responsibility to the Client or any other person for any act or omission of a delegate appointed by Abacai provided that Abacai makes such appointment or permits the continuation thereof in good faith and without neglect.
- (c) Abacai may disclose information in connection with the Client, its owner(s) and affairs, to any delegate engaged to provide any element of the Services to the extent that doing so is desirable, necessary or required for the delegate to meet its legal or regulatory obligations or best practice.
- ASSIGNMENT AND THIRD PARTY RIGHTS
- (a) The Client may not assign or transfer any of its rights or obligations under the Engagement Terms without the prior written consent of Abacai.
- (b) No person shall have any right to enforce any term or enjoy the benefits of the Engagement Terms or the General Terms of Business pursuant to the Contracts (Rights of Third Parties) Act 1999 or any comparable law in any other jurisdiction.
- SEVERABILITY If, at any time, any provision of the Engagement Terms is or becomes illegal, invalid or unenforceable in any respect this will not affect or impair the legality, validity or enforceability of any other provision of the Engagement Terms.
- COUNTERPARTS The Engagement Terms can be composed of several counterparts which, taken together, shall constitute one single set of Engagement Terms.
21. GOVERNING LAW
The Engagement Terms shall be governed by the laws of England and the Client irrevocably submits to the exclusive jurisdiction of the courts of England.