TERMS AND CONDITIONS OF BUSINESS
These terms and conditions of business (as amended from time to time) apply to all instructions we receive to provide legal services unless we have otherwise agreed in writing. These terms and conditions of business are supplemented by an engagement between the Contracting Party (as defined below) and you.
Silveroak Legal Cayman is a partnership formed under the laws of the Cayman Islands, carrying on Cayman Islands legal services under the name “SILVEROAK LEGAL CAYMAN”, “Silveroak Legal (Cayman)” or “SL Cayman”, with its office at Suite #647, 10 Market Street, Camana Bay, Grand Cayman, KY1-9006, Cayman Islands. Silveroak Legal BVI is a partnership formed under the laws of the British Virgin Islands carrying on British Virgin Islands legal services under the name “SILVEROAK LEGAL BVI”, “Silveroak Legal (BVI)” or “SL BVI” with its office at PO Box 4084 Road Town, Tortola, British Virgin Islands VG1110. Each of Silveroak (Cayman) and Silveroak (BVI) are separate partnerships and law firms each of which, absent a specific written contractual agreement with a client on a specific matter, is solely responsible for its own work and not the work of the other firm. The afore-mentioned firm that is engaged by the client is referred to as the “Contracting Party”. The words “we”, “our”, “us” and the “firm” mean or refer to the Contracting Party. The term “you” and “your” refer to the client (jointly if more than one, and not individually) instructing us in relation to a particular matter and in respect of which the Contracting Party engages. Each of the afore-mentioned firms are committed to providing first class quality legal advice on the laws of its respective jurisdiction and building long term relationships with clients. Our attorney/client relationship is between the Contracting Party and the client only and not with any other entities or persons related to the client including, without limitation, subsidiaries, affiliates, parent companies, directors, officers, employees, shareholders, members and partners.
The following documents constitute the entire agreement relating to our agreement with you: (1) these terms and conditions of business, as they may be amended from time to time by us, and either posted on our website or e-mailed (or sent in any other format) to you or your representative by way of notice, the terms and conditions of which you hereby agree to be bound by, upon receipt of said e-mail, notice or posting on our website; (2) the engagement letter referred to herein entered into between us and you; and (3) any written supplements or amendments to the foregoing entered into from time to time between us and you. In the event of any inconsistency or conflict between the afore-mentioned documents they shall be construed in the priority in which they are set out above although always subject to amendments referred to in (3).
Notwithstanding anything herein to the contrary, the person(s) named in our engagement letter (the “Letter”) is/are our client(s) and no other affiliate, person or other related entity is/are our client(s). Each client is jointly and severally responsible for all obligations to us. Subject as otherwise provided herein, no person other than us and the client(s) specified in the Letter has any rights whatsoever (whether in its own right or otherwise) to enforce any provision of these terms and conditions of business or the Letter, including without limitation under the Contracts (Rights of Third Parties) Law (Revised) as enacted in the Cayman Islands.
These terms and conditions of business and the Letter supersede any prior oral or written agreement or agreements between you and us or any other parties. They set forth our entire agreement for providing professional services for engagements, whether existing or in the future. As the Letter indicates, your use of our service shall be deemed to constitute your acceptance of these terms and conditions.
Silveroak Legal (Cayman) is the Contracting Party for the matter. For the avoidance of any doubt the contractual relationship is between the Contracting Party and the client and is not binding on or applicable to any other Silveroak Legal entity or individuals.
We do not agree to general retainers to act for you as a matter of general policy and we reserve the right not to accept instructions in relation to any particular matter or to decline to act at any time on the grounds of a failure to provide requested due diligence information, a conflict or potential conflict of interest or otherwise. Notwithstanding anything herein to the contrary we reserve our right to decline (in our sole discretion and determination which shall be final) to continue to act any further should we determine it is not in our best interests as a law firm to continue acting and this may include, without limitation, circumstances where we perceive there to be any reputational or other risks. Any such determination will be made in our sole and absolute discretion and will be final and shall be without liability on our part.
Our engagement is subject at all times to our completion of such intake procedures as we may adopt from time to time, including the receipt of any funds on account should the latter be requested, this includes our completion of any potential conflicts of interests. You hereby agree to disclose all entities and persons who may be interested in this matter. We also will require certain information from you or other parties in order to comply with our obligations under all relevant anti-money laundering legislation and regulations, related and ancillary legislation, and our own internal polices. You hereby agree to provide us with any and all information requested in connection therewith as accurate certified true copies at the outset of the engagement and you confirm that you will authorize, consent and instruct any reqistered office provider that you have provided that information to, said information to be entirely accurate and complete and up to date in all respects, to provide us with certified and true copies of all information we may request to comply with our obligations under relevant ant-money laundering legislation and regulations, related and ancillary legislation and our own internal policies designed to ensure compliance with applicable law and sanctions that we may be required or opt to comply with as best practice. If you do not provide any of the foregoing information described in this paragraph, in such form as we request and within such time frame as we may require, we will cease acting for you in relation to this or any other matter. It may also be that in certain cases we will be required to report to the authorities in Cayman any suspicious transactions.
It is a matter for our absolute discretion to allocate and re-allocate work to such member(s) of our partners, staff, lawyers, para-legals, assistants and consultants as we may in our absolute and sole discretion deem appropriate.
CONFLICTS OF INTEREST
Our engagement is subject to the satisfactory completion of our own internal conflict of interest check, to be determined in our sole and absolute discretion. As our representation of the client is limited in scope it is a condition of our engagement that you agree that we may represent, at any time, new or existing clients in any matters that are not substantially related to the work for you. We may represent those clients in those other matters even if they are directly adverse to your interests or those of any of your affiliates. You hereby agree, by accepting the terms and conditions of this engagement that you agree to waive any conflict of interest that may arise in such a situation. Without your prior written consent, we cannot and will not represent any client adverse to you in a specific legal matter if we have received confidential information from you that is material to the relevant matter. However, in instances in which we have no material confidential information, you hereby agree that we can act for those other clients in legal matters, even those adverse or potentially adverse to you or your affiliates, without your further consent. You hereby agree to notify us as soon as you become aware of a conflict, potential conflict or a situation that might give rise to a conflict.
CHANGES IN LAW AND LIMITATION OF ADVICE
The advice provided by this firm relates only to the laws of the jurisdiction of the Contracting Party in effect at the time we provide our advice. We do not accept responsibility for nor do we agree to advise on changes in the law or its interpretation at any subsequent time. No comment, suggestion or opinion, oral or written as to the laws of any other jurisdiction (other than the laws of the jurisdiction of the Contracting Party) or in relation to any commercial or other non-legal matter may be relied upon by the client. We rely, in rendering our advice, on the understanding that you have obtained professional advice as to the laws of all other relevant jurisdictions from appropriate counsel in that jurisdiction. The advice we render is confidential and strictly provided only to you as our client to rely upon unless you obtain our prior written consent.
RECORDS AND DATA PROTECTION
At our discretion we may seek out, obtain and process personal data from you for the following:
(a) to allow us to provide the legal services you require and for our own administrative purposes;
(b) to allow us to comply with our anti-money laundering policies and know your client requirements as required by applicable law or as adopted as the best practice of the Contracting Party;
(c) for business development or marketing purposes, including sending you legal or business development information and materials which we either believe may be of interest or which you have requested and/or to invite you to meetings, seminars and all other types of business development events or meetings and/or for the purposes of identifying any relationships between you and other parties.
You can email the Managing Partner of the Contracting Party at any time to request your personal information not be used for business development or marketing purposes.
Subject to our confidentiality obligations (see “Confidentiality” below) and the data protection laws applicable to us you acknowledge and agree that SL Cayman and SL BVI or any other agent or affiliate, may collect, receive, generate, disclose, transfer, process and store date and materials, content and information relating to your business, you, your shareholders, beneficial owners, principals, members, affiliates, employees, offices, directors, partners and agents (“Data”) whether or not confidential, either in electronic or original form, on servers provided by third party service providers both within or outside of the Cayman Islands and/or in other jurisdictions, regardless of whether the Contracting Party has a presence in that jurisdiction, including jurisdictions which may not have equivalent data protection legislation and requirements to those provided for in the Cayman Islands, the British Virgin Islands and the EU. You explicitly consent to the Data being transferable into and out of any jurisdictions. You acknowledge that we may be required to retain Data for a period of time after termination of our relationship and may be compelled, required or requested to disclose Data to third parties as detailed in the section headed “Confidentiality” below.
You and us (together, the “Parties” and each a “Party”) hereby agree that neither Party shall disclose to any other person, at any time, to any other person, and shall treat as confidential, any and all information relating to the finances, business, prospects or anticipated transactions or other matters pertaining to the other Party, where such Party has obtained that information as a result of its’ relationship with the other Party, except where the information is or was:
(a) known to the recipient from a different source than the Parties without any confidentiality obligations attached;
(b) public knowledge or otherwise in the public domain otherwise than as a result of the disclosing Party’s unauthorized disclosure;
(c) properly disclosed to professional advisors, consultants, service providers, affiliates or agents engaged by either Party and each of whom is under a duty of confidentiality in relation to the information;
(d) disclosed as required by law, by an order of any tribunal, court or equivalent entity, or pursuant to any requirement, request or direction (having the force of law or not) of any central bank, governmental, supervisory, enforcement or other taxation or regulatory authority (provided always, that if permitted by applicable law, the Party disclosing the information will inform the other Party in writing before disclosing the information);
(e) disclosed with the prior written consent of the other Party.
You hereby agree that you will ensure (and we will rely on this assurance) that any confidential information provided to us in relation to shareholders, beneficial owners, directors, employees, officers, affiliates, authorized persons, principles and agents is and has been provided with the acceptance and consent of each of those persons. The confidentiality provisions under this heading “Confidentiality” shall survive the termination or expiry of our engagement.
We may communicate with you via unencrypted e-mail and we do not accept liability for any interception, corruption, delay, error, loss or omission in the context of e-mail communication. You hereby acknowledge and agree that you accept in full the risks of e-mail communication in all regards and that we are not responsible for the consequences of any redirection, copying, interception or the reading by third parties of the e-mail and any attachments whether effected by individuals, entities or state actors. You hereby further acknowledge and agree that you accept in full the risks and losses that may be incurred by you in relation to viruses, malware and other forms of software having a similar effect. You acknowledge and agree that it is your responsibility to screen for viruses, malware and other forms of software having a similar effect. You hereby consent without limitation to our communicating with you and providing sensitive legal advice via e-mail unless you provide prior written notification otherwise. We retain the right at all times to monitor e-mail and any attachments to ensure our internal policies relating thereto are being complied with. E-mails and attachments or any content thereof sent to you at any time, whether before, during or after the engagement, that are unrelated to the official business of this firm are not endorsed or sent by the firm and we accept no liability in connection therewith.
COPYRIGHT AND INTELLECTUAL PROPERTY
Documents that we generate for our clients are protected by copyright with all rights pertaining thereto belonging to the firm. You are entitled to use those documents for the matter for which they were prepared (or as otherwise agreed in writing).
RETENTION OF RECORDS
We will retain documents in any format in accordance with our policy and the laws of the relevant jurisdiction. As an international law firm all information, data, content and materials (including originals) (whether confidential or not) held by us in any format will be held at your risk and the firm accepts no liability or responsibility in relation to any loss or damage howsoever caused. You further agree that the firm may transfer in any format said information, data, content and materials into and out of any jurisdiction, including jurisdictions that may not have equivalent data protection laws to those in your jurisdiction or the laws of the jurisdiction of the Contracting Party or other relevant jurisdiction and that the firm may be required to maintain said information, data, content and materials after the termination of the engagement and may be required by law to disclose your information, data, content and materials to third parties. After a period of six years from the termination of the engagement, the date of which will be determined by the firm in its sole and absolute discretion, we shall have the right, but not the obligation to destroy said information, data, content and materials regardless of the format in which it is held and whether it constitutes original documentation.
We will not be liable for any failure or delay in providing our services as a result of circumstances beyond our control including, without limitation, fire, flood, storm, tropical storm, hurricane, earthquake, civil unrest, riots and war, acts of god and the regulations or laws of any governmental or other international authority.
If a client has any complaints about the work or services rendered by us then these should be raised with the Managing Partner of the Contracting Party. The relevant Managing Partner’s contact details are available on last page of the website at www.silveroaklegal.com under the heading “Contact Details”.
Unless we otherwise agree in writing fees will be charged at the appropriate hourly rate designated by the firm from time to time, which are subject to periodic increases (although it is not the firms’ policy to publish or notify any parties of the details of changes to hourly rates). We reserve our right to add a weighting to legal fees in cases whether a formal legal opinion is required or where we perceive there to be unusual responsibility, complexity, urgency or novelty. All legal fees and disbursements shall be paid to us net of any surcharges or taxes.
FUNDS ON ACCOUNT
You agree that we may from time to time request payment on account in respect of fees and disbursements before undertaking work. All client funds will be held in a segregated account on trust for you and interest will not be payable on said funds. You hereby agree that we may use these funds in payment or partial payment of invoices rendered by this firm from time to time however if you request in writing that we hold these funds pending the resolution of any dispute between you and us we shall place said funds in a suspense account pending resolution of any conflict. We shall not be liable for any losses for funds retained in said account or accounts in the event any bank with which the funds are placed in unable to meet its obligations to its creditors for any reason whatsoever. We shall have the right at all times not to act for you or to terminate the relationship in respect of any matters if any request for funds on account is denied by you.
Unless you otherwise agreed in writing by instructing this firm you hereby authorize us to charge you for all disbursements (regardless of their nature) incurred by this firm, while acting on this matter however we reserve the right to forward unusually large disbursements to you directly for settlement. These charges will be included in our invoices and we do not mark-up expenses over our cost. We may at our option and without notice charged a fixed amount for our disbursements expressed as a percentage of the legal fees on each invoice.
All legal fees and disbursements shall be paid to us net of any surcharges, taxes or bank fees.
BILLING AND PAYMENT
Unless otherwise agreed in writing invoices are typically rendered, in our sole discretion, at periodic intervals for interim amounts or at the conclusion of the matter. Disbursements may have been incurred at the same time however they may be invoiced at a later date at our discretion. Payment is due immediately on receipt and in the same currency in which the invoice is submitted. If you are legally required to deduct any amount when paying a bill, you agree to pay us such additional amount to ensure we receive a net sum equal to the total amount of our invoice. If payment is not made within 30 days, we may charge interest at a monthly rate of 7% after that date. Without prejudice to our right to claim said interest if payment is not made when requested we may stop acting for you on the matter to which the invoice relates and any other matters (and you hereby agree that we are not responsible for any loss resulting from our inactivity) and we may exercise our right to retain possession of documents (by way of a lien) that belong to you and our own client records until payment is made in full whether in relation to the matter in respect of which timely payment has not been made or any other matter. You hereby consent to receipt of e-mail invoices instead of hard copies. We will require you to obtain our approval in advance if you propose that any third party pay any part or all our invoice. Notwithstanding approval from us you will remain fully responsible for the invoice and interest accrued (if any) and none of our remaining rights hereunder will be waived or modified in anyway. Unless otherwise agreed in writing if we are instructed by more than one client responsibility for our fees and disbursements and any interest payable thereon will be joint and several and the right to retain possession of documents and client records will apply to all clients. Any right a client or clients may have to recover funds from a third party shall not relieve them of their obligations hereunder. If we are requested by any regulatory or other governmental body, or by your appointed service provider, to submit our invoice to audit, to provide information or other documents in respect of any matter you have engaged us on we shall continue to bill you for the work and disbursements involved at the original agreed rates. If legal privilege attaches to a document you will waive said privilege or instruct us to review them for you.
Unless we otherwise agree in writing where we provide estimates of fees and expenses these are to be regarded as non-binding estimates only and we are under no obligation to inform you should these estimates subsequently become outdated.
If the validity or enforceability of any of the terms set out herein are limited by the law, the law will take precedence over the terms of engagement, but the relevant terms will be valid and enforceable to the fullest extent permitted by such laws and such limitation shall not affect the validity or enforceability of any other term.
You or we may, in each case in our sole and absolute discretion, terminate this engagement at any time by notice in writing (via e-mail), said termination to take immediate effect. You will be responsible for fees and disbursements incurred up to the date of termination and for any fees and disbursements we incur in transferring files to any other parties. In the event a fixed or flexible fee solution has been agreed upon, as contemplated by the section headed “Fees” on our website, then these fees shall, unless otherwise agreed, be calculated in accordance with the details of the relevant fixed or flexible fee solution agreed for the matter in question in the engagement letter. Notwithstanding the foregoing our engagement automatically terminates upon the completion of our work as contemplated by our original instructions. Any termination contemplated herein will not prejudice any other contractual rights set out herein.
LIMITATION OF LIABILITY IN RELATION TO ENGAGEMENT
If you, or a party whom you represent or who claims through you, suffers or incurs any loss or damage whatsoever, and regardless of how that loss or damage arises, you and the relevant party hereby agree that notwithstanding anything herein to the contrary, your recourse shall be limited in amount and extent to the assets of the firm and shall thereafter be extinguished. You further agree that neither you nor the relevant party will seek or have recourse to the assets of any director, partner, officer, employee or representative of the firm (whether an individual or corporate entity, regardless of domicile and jurisdiction) nor will you or the relevant party bring any action or proceedings, including for the avoidance of doubt arbitration proceedings, against such persons in any jurisdiction. You further hereby agree that neither the Contracting Party nor any other Silveroak Legal entity warranties or promises a certain outcome to the matter and the Contracting Party’s representation of you.
BRIBERY AND INTEGRITY
We expect that you will act in the highest professional and ethical manner in all dealings with the Contracting Party and you further agree not to request any conduct from us that would bring our name into disrepute and that you will (and will ensure all your directors, officers and employees and other persons associated with you) refrain from practices involving bribery in contravention of the laws of various jurisdictions and that you will institute procedures to eliminate the risk of such practices occurring within your organization.
GOVERNING LAW AND JURISDICTION
The terms of this engagement are governed by and construed in accordance with the laws of the state of the Contracting Entity. Subject to the provisions below under the heading “Arbitration and Waiver of Legal Proceedings” you hereby irrevocably agree to submit to the exclusive jurisdiction of the courts of the jurisdiction of the Contracting Party in respect of any dispute arising out of or in connection with the terms of this engagement or any advice provided by us.
You further agree that in connection with any dispute the prevailing party shall be entitled to recover from the losing party the expenses of arbitration (and/or litigation) and all associated legal fees and costs that are incurred in connection therewith.
ARBITRATION AND WAIVER OF LEGAL PROCEEDINGS
All disputes and claims arising out of or in connection with this engagement (including, without limitation, claims of professional negligence), regardless of their nature, may, at our option, be finally settled in the state of the Contracting Party under the London Court of International Arbitration Rules. The President of the Cayman Islands’ Law Society will appoint the arbitrator if we are unable to agree on one with you. The Arbitrator’s award shall be final and binding.
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