GENERAL TERMS OF BUSINESS
These General Terms of Business (General Terms) apply to the provision of services by DMS pursuant to any agreement entered into between a client and DMS (the Agreement(s)).
Definitions and Interpretation
Affiliates means any entity, whether partnership, company or otherwise, which owns or controls or is owned or controlled by, or under common control with or affiliated with DMS as may be established from time to time.
DMS or we or us means the DMS contracting party identified by the Agreement.
DMS Agents means those persons we authorise to act on our behalf and for whose conduct we accept responsibility in connection with the Services.
DMS Persons means the DMS contracting entity, each and all of our partners or directors, employees, Affiliates and DMS Agents.
Other Beneficiaries means any person or entity (other than you) identified in and for whom you sign the Agreement as a beneficiary of the Services or any product of the Services.
Party means either you or us, together the Parties.
Services means those services to be provided by us under the Agreement.
Services Contract means the contract formed by these General Terms, the Agreement(s) and any appended other terms applicable to the Services from time to time in place and made available to you (including but not limited to product terms, online services terms and website terms (Additional Terms)).
you (and derivatives) means the addressee (or addressees) of the Agreement.
The headings of these General Terms shall not affect in any way their meaning.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and words denoting a gender include every gender and references to persons include bodies corporate and unincorporated.
Reference to these General Terms, Services Contract, Agreement or Additional Terms shall be construed as reference to such document as amended, varied, supplemented, novated, replaced or restated from time to time.
Reference to statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to such statute or provision as it has been amended, modified, extended, consolidated or replaced and shall include any subordinate legislation made under it.
Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes email.
1. Except as explicitly stated in the Services Contract, no person other than you or us has any right, whether in their own right or otherwise, to enforce any provision of the Services Contract including without limitation under the Contracts (Rights of Third Parties) Law, 2014 (as amended, modified, re-enacted or replaced).
2. Unless we agree otherwise in writing, the Services Contract sets forth our entire agreement for rendering the Services. If and to the extent these General Terms conflict with the Agreement or the Additional Terms, the Agreement and/or the Additional Terms shall prevail.
3. We may at any time alter, adapt, change, add to or remove portions of these General Terms and, if we do so, we will post any such changes on our website. Your continued use of the Services following such change will be deemed and constitutes your acceptance and you agree to be bound by the current version of the General Terms at all times and that all previous versions shall be superseded by the current version.
4. These General Terms and any dispute, claim, suit, action or proceeding arising out of or in any way connected to them are governed by and shall be construed in accordance with the laws of the Cayman Islands. You irrevocably agree that any such dispute, claim, suit, action or proceeding shall be brought exclusively in the courts of the Cayman Islands who shall have exclusive jurisdiction.
5. The Agreement shall set out the Services to be provided by us and associated matters and, in accordance with clause 3, may vary these General Terms.
6. Subject to these General Terms, we warrant (to the exclusion of all other standards implied by law or otherwise, if any, to the extent permitted by law) to provide the Services with reasonable care and skill. In circumstances where, because of urgency or otherwise, we are not given comprehensive and specific written instructions or adequate time to properly consider the matter prior to provision of the Services, we proceed on the understanding that you recognise and agree that the standard of care which we are obliged to exercise is only that which is reasonable and appropriate to such circumstances.
7. Where the Services include the provision of advice, reports or any products we shall not be obliged to update any advice, report or other product, oral or written, for events occurring after the advice, report or product concerned has been issued in final form. Any advice, opinion, statement of expectation, forecast or recommendation supplied by us shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.
8. Any product of the Services in any form or medium shall be supplied for your benefit and information only. Save as may be required by law or by a competent regulatory authority (in which case you shall, unless prohibited by law, inform us in advance), it shall not be copied, referred to or disclosed by you, in whole (save for your own internal purposes) or in part, without our prior written consent. You shall not quote our name or reproduce our logo in any form or medium without our prior written consent. You may disclose in whole any product of the Services to your legal and other professional advisers if seeking advice in relation to the Services, provided that when doing so you inform them that: (a) disclosure by them (save for their own internal purposes or where compelled by law or regulation) is not permitted without our prior written consent: and (b) to the fullest extent permitted by law we accept no responsibility or liability to them in connection with the Services.
9. If our performance of the Services is prevented or delayed by any act or omission by you or any third party, we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from that act or omission.
10. To enable us to perform the Services, you shall supply promptly all necessary information and assistance and all necessary access to documentation in your possession, custody or under your control and to personnel under your control where required by us. You shall use your best endeavours to procure these supplies where not in your possession or custody or under your control. You shall inform us of any information or developments which may come to your notice and which might have a bearing on the Services. You shall supply information in response to our enquiries (if any) to enable us to comply with our statutory responsibilities to make disclosures to relevant authorities in respect of money laundering and any other criminal activity that we may encounter during performance of the Services and any such disclosures may include Confidential Information (as defined herein).
11. Where we require information from you or from other sources in the course of delivering the Services, to the fullest extent permitted by law we shall not be liable to you or to any third party for any loss or damage suffered by you or any third party arising from fraud, misrepresentation, withholding of information material or relevant to the Services or required by us, or other default relating to such information or the provision thereof, whether on your part or the part of the other source of information, unless such fraud, misrepresentation, withholding or other such default is evident to us without any further enquiry.
Confidential Information and Data Protection
12. It is agreed that each Party shall at all times treat as confidential, and neither Party shall at any time disclose to any other person, any information relating to the business, finances or other matters of the other, which such Party has obtained as a result of its relationship with the other Party under the Services Contract (Confidential Information), save where the Confidential Information is or was: (a) already known to the recipient; (b) in the public domain or becomes public knowledge otherwise than as a result of the unauthorised or improper conduct of the disclosing Party; (c) disclosed as required by any law or order of any court, tribunal or judicial equivalent, or pursuant to any direction, request or requirement (whether or not having the force of law) of any central bank, governmental, supervisory or other regulatory agency or taxation authority; (d) disclosed by DMS Persons for business purposes to any other DMS Persons; (d) disclosed by either Party for business purposes to professional advisors, service providers, professional indemnity insurers or agents, engaged by one of the Parties, who receive the same under a duty of confidentiality; (f) made available by a third party who is/was entitled to divulge such information and who is not under any obligation of confidentiality in respect of such information to the other Party; or (g) disclosed with the consent of the other Party.
13. For the avoidance of doubt, information relating to you, to our relationship with you, and to the Services, including Confidential Information, may be shared by us with any DMS Person), and may be accessed by other parties who facilitate the administration of our business or support our infrastructure. We shall remain responsible for preserving confidentiality if Confidential Information is shared with DMS Persons or accessed by such other parties. We may remove, or arrange for the removal of, names and any other identifiers from Confidential Information and then use such anonymised information for lawful purposes chosen at our discretion.
14. The DMS Persons may use, store, transfer, disclose or otherwise process your data, including personal data, for the purposes set out in the Agreement or as otherwise required by applicable law or regulation. Your data, including personal data, will be collected, processed and stored by the DMS Persons in a number of different jurisdictions in order to, without limitation, manage our relationship, provide the Services, assess and analyse in order to develop and improve our services and to protect your interests.
15. DMS (for itself and the DMS Persons) reserves the right, and you explicitly authorise the DMS Persons to transfer, and consent to the transfer of, your data, including personal data, to other DMS Persons, to other third party service providers as they may from time to time engage, or to any DMS Agent or intermediary or regulated institution with regulatory or compliance obligations in relation to relationships between you and us, used in the provision of the Services, anywhere in the world. You understand, acknowledge, accept and agree that where such transfer is made to a jurisdiction that is not the Cayman Islands, that jurisdiction may not have data protection laws in place that are of a similar standard to those in the Cayman Islands. You further acknowledge, accept and agree we may retain your data, including personal data, after termination of the Service Contract and may be compelled to disclose data, including personal data, to third parties.
Ownership and Advertisements
16. We shall retain ownership of the copyright and all other intellectual property rights in the product of the Services, whether oral or tangible, and ownership of our working papers. You shall acquire ownership of any product of the Services in its tangible form upon the later of receipt of the product or payment of our Charges. For the purposes of providing services to you or other clients, the DMS Persons shall be entitled to use, develop or share with each other knowledge, experience and skills of general application gained through performing the Services.
17. DMS Persons may, at their own expense, place announcements or advertisements in financial newspapers, journals and marketing materials describing the Services, and may wish to disclose that DMS Persons have performed work (including the Services) for you, in which event we may identify you by your name but shall indicate only the general nature or category of such work (or of the Services) and any details which have properly entered the public domain.
Instructions and Monitoring
18. We may rely on any instructions, requests or information supplied, orally or in writing, by any person whom we believe to be authorised by you to communicate with us for such purposes without further enquiry.
19. DMS Persons may communicate with you by e-mail. E-mail communication is not secure and may be subject to delay, data corruption, amendment, loss or interception. You are deemed to accept these risks if you communicate with us by email and we shall not be responsible for any unauthorised interception, redirection, reading or copying of emails or attachments, nor any effect on any computer system of any emails, attachments, viruses or other which may be transmitted electronically.
20. You agree that DMS Persons may monitor or intercept all e-mails or other electronic communication and data to gather information for purposes of compliance, security, marketing, statistical analysis and systems development. Anything sent by e-mail which does not relate to the official business of DMS Persons is neither given nor endorsed by any DMS Person.
21. DMS may record and monitor telephone calls both received by and made by employees of DMS. Any such recordings remain the property of DMS, and may be used by us in the event of a dispute. DMS Persons shall have the authority to deliver copies or transcripts of such recordings to any court or regulatory authority of competent jurisdiction as they see fit and you hereby waive any objection to such use of any such recordings or transcripts as evidence of any such telephone conversation.
Intake Procedures, Knowledge and Conflicts
22. Provision of the Services is subject to the terms of the Service Contract and effective upon completion of our normal intake procedures, which may include, but are not limited to, the receipt of any required deposit, completion of a check for potential conflicts and receipt of any required information or documentation required from you, your affiliates or the Other Beneficiaries in order to comply with any obligations under applicable anti-money laundering regulations and legislation and our internal policies. You understand that such obligations are ongoing and undertake to provide such information and documentation upon request throughout the course of the Service Contract. Please note that if this information is not received to our satisfaction we may be obliged to cease to act for you, which may result in suspension or termination of the Services Contract and any other action as we determine necessary, which may include making a report to relevant authorities without notice to you.
23. The individual(s) within DMS who provide the Services: (a) shall not be required, expected or deemed to have knowledge of any information known to DMS Persons which is not known to the individual(s) providing the Services; and (b) shall not be required to make use of or to disclose to you any information, whether known to them personally or to DMS Persons, which is confidential to another client.
24. DMS Persons may provide services to other parties or persons who have interests which compete or conflict with yours (Conflicting Parties). DMS Persons have and shall retain the right to provide services to Conflicting Parties. Where the interests of the Conflicting Party conflict with yours specifically and directly in relation to the subject matter of the Services, the individual(s) providing the Services shall not provide services to the Conflicting Party, and DMS shall ensure that appropriate protections are put in place. The effective operation of such protections shall constitute sufficient steps to avoid any real risk of a breach of our duty of confidence.
25. Where a party has engaged us to provide services before you and subsequently circumstances change, we may consider that, even with the operation of such protections, your interests are likely to be prejudiced and we may not be satisfied that the situation can be managed. In that event we may have to terminate the Services Contract and we shall be entitled to do so on immediate notice but we shall inform you.
26. If you know or become aware that a DMS Person is advising or proposing to advise such a Conflicting Party, you shall inform us promptly and we shall determine in our sole discretion what action is appropriate.
27. Notwithstanding our duties and responsibilities in relation to the Services, you remain responsible for managing your affairs, deciding what to do having received any product of the Services and implementing such product.
28. Where you require us, or it is more efficient for us, to perform Services at your premises or using your systems or networks, you shall ensure, at your cost, that all necessary arrangements are made, including, but not limited to, access, security, licences or consents.
29. You shall not, directly or indirectly, solicit the employment of any of our employees involved in performing the Services, during performance or for a period of six (6) months following completion or termination of the Services Contract, without our prior written consent. This does not prevent you offering employment to any of our employees who may respond to any recruitment advertising campaign.
30. We shall render invoices in respect of the Services which shall include all fees, disbursements, expenses and any appropriate taxes thereon (where appropriate) (Charges).
31. An administration charge shall generally be payable in advance to cover the expense of all standards communications charges including, without limitation, telephone, postage, scanning, photocopying, printing, and routine postage and delivery services. For certain Services, the Agreement may instead or additionally require a deposit and replenishment of the same for expenses or disbursements. Where expenses or disbursements are not covered by the administration charge or deposit, our invoice may not include some expenses or disbursements which fall within the period of the invoice but have not been captured prior to our invoice being sent and such will be included in later invoices.
32. Further details of Charges, deposits and any special payment terms shall be set out in the Agreement and the Charges may differ from any prior estimates or quotations. DMS’ standard hourly rates are generally calculated to take into consideration the nature and degree of complexity of the Services, the level of responsibility and skill set of the individuals involved in providing the Services and the expected amount of time spent.
33. In return for the provision of the Services by us, you shall pay our Charges (without any right of set-off), on presentation of our invoice or at such other time as may be specified in the Agreement. We may at any time, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you. The Service Contract may additionally give us the right to deduct amounts owed by you from any balance we may hold on your behalf.
34. We may charge interest on any outstanding balances at 5% (this rate applying after as well as before any court award or judgement in our favour in respect of outstanding balances).
35. If the Services Contract is terminated or suspended, we shall be entitled to immediate payment for all Charges.
36. Where there is more than one addressee of the Agreement, unless the Agreement provides otherwise, all of you shall be liable to pay our Charges in full separately and together as a group.
37. If we are required by any court or regulatory body in any proceedings to provide information or to produce documents relating to the Services, you shall pay our costs incurred in preparing for and responding to any such requirement at our standard hourly rates applicable at the time of responding, together with expenses, including but not limited to, legal expenses.
38. We reserve the right to increase our standard hourly rates or fees. Where such increase is not expressly provided for in the Agreement, DMS may impose such increase, provided that such increase shall occur no more than once in any twelve (12) month period. We will provide notice of any fee increase thirty (30) days before the proposed date of the increase.
39. Subject to clauses 40 and 41, the aggregate liability to you and to Other Beneficiaries of each and all DMS Persons, in contract or tort or under statute or otherwise, for any loss or damage suffered by you (or by any such other party) arising from or in connection with the Services or the Services Contract, however the loss or damage is caused (for the avoidance of doubt, including if caused by our negligence but not if caused by our fraud), shall be limited to the amount specified in the Agreement and, where not specified in the Agreement, to three (3) times the fees paid by you in the preceding year.
40. Subject always to the aggregate limitation on our liability in the Agreement, our liability shall in aggregate be limited to that proportion of the total loss or damage, after taking into account contributory negligence (if any), which is just and equitable having regard to the extent of our responsibility for the loss or damage concerned, and the extent of responsibility of any other person also responsible or potentially responsible (Responsible Person). No account shall be taken of any matter affecting the possibility of recovering compensation from any Responsible Person, including the Responsible Person having ceased to exist, having ceased to be liable, having an agreed limit on its liability or being impecunious or for other reasons unable to pay. Full account shall be taken of the responsibility to be attributed to any Responsible Person whether or not it is a party to any proceedings or a witness.
41. Where there is more than one beneficiary of the Services (you and the Other Beneficiaries) the limitation on our liability agreed under clause 39 to each shall be apportioned by them amongst them. No beneficiary shall dispute or challenge the validity, enforceability or operation of clause 39 on the ground that no such apportionment has been agreed or that the agreed share to any beneficiary is unreasonably low.
42. We accept the benefit of the limitations of this section on our own behalf and confer benefits on all DMS Persons involved in providing the Services.
43. Any parts of the Services Contract which do or may exclude or limit our liability shall not apply beyond the extent permitted by law.
44. You and Other Beneficiaries shall not bring any claim against anyone except DMS in respect of loss or damage suffered by you or by Other Beneficiaries arising out of or in connection with the Services. This restriction shall not operate to limit or exclude the liability of DMS for the acts or omissions of anyone involved in providing the Services.
45. Any claim from you or Other Beneficiaries in respect of loss or damage suffered as a result of, arising from, or in connection with the Services Contract, whether in contract or tort or under statute or otherwise, must be brought: (a) within four years of the date of the activity giving rise to the claim; or (b) if the claim relates to our unauthorised disclosure of Confidential Information, within four years of the date on which the unauthorised disclosure took place, and in any of these cases that shall be the date when the earliest cause of action (in contract or tort or under statute or otherwise) shall be deemed to have accrued in respect of the relevant claim. For the purposes of this clause a claim shall be brought when court proceedings are commenced.
46. Any indemnity set out in the Agreement shall apply. If you or any Other Beneficiary breach any obligation under the Services Contract and there is any claim made or threatened against any DMS Person by a third party, you shall compensate, reimburse and protect the DMS Persons against any loss, damage, expense or liability incurred by the DMS Person which results from or arises from or is connected with any such breach and any such claim. If any payment is made by you under this section you shall not seek recovery of that payment from any DMS Person at any time.
47. Termination shall be in accordance with the provisions of the Agreement. Termination shall not affect any rights that may have accrued for either you or us before termination and all sums due to us, including fees for Services performed and charges for expenses and disbursements owed, shall become payable in full when termination takes effect.
48. Any part of these General Terms which, by its nature or implicitly or to give effect to its purpose, is to continue in force after expiry or termination of the Services Contract shall survive, such as (for example) restrictions on use or confidentiality or terms protecting against liability.
49. Any notice under the Services Contract shall be in accordance with the notice provisions of the Agreement and, in the absence of such provisions, shall be sent by email to the email addresses notified by the parties to one another.
50. We shall not be held liable for any delay or failure to fulfil our obligations to you as a result of causes beyond our reasonable control. Such causes shall include but shall not be limited to, fire, flood, typhoon, hurricane, tropical storm, acts of good, acts and regulations of any governmental or regulatory authority, changes to law or regulation, war, riot, strike, lock out and industrial dispute.
51. Any notice under the Services Contract shall be in accordance with the notice provisions of the Agreement and, in the absence of such provisions, shall be sent by email to the email addresses notified by the parties to one another.
52. Any delay or failure to exercise or enforce any rights shall not amount to a waiver of such rights. We will only be taken to have released our rights under these General Terms if we have expressly confirmed such release in writing to you.
53. No-one shall have the right to assign the benefit (or transfer the burden) of the Services Contract to another party except that DMS may assign the benefit (or transfer the burden) to any DMS Person. We shall have the right to appoint sub-contractors to assist us in providing the Services. Where we do so, we may share Confidential Information and, for purposes in connection with the Services Contract, shall accept responsibility for their activities forming part of the Services.
Each clause or term of the Services Contract constitutes a separate and independent provision. If any provision or part-provision of the Services Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Services Contract.