Terms of Business
1. Definitions
As used in these Terms of Business, the following terms have the following defined meanings:
Affiliate means, with respect to any Person, any other Person who, directly or indirectly, Controls, is Controlled by, or is under common Control with, such Person.
AML Officer means the natural person(s) engaged by the Client to service as anti-money laundering compliance officer, anti-money laundering reporting officer, and the deputy anti-money laundering reporting officer.
Appointee means any Person procured by Arkus Advisory and appointed to act for the Client in any capacity, including in their personal capacity, pursuant to the terms of any Engagement Letter and these Terms of Business.
Appointment means the appointment or purported appointment of any administrator, receiver, voluntary liquidator, administrative receiver, provisional liquidator or similar officer or agent in relation to the Client, its Assets or any other Relevant Person or any attempt by any Person to enforce a charge of any nature over the structure, ownership interest, or ongoing business of the Client or its Assets.
Arkus Advisory means Arkus Advisory LLC.
Arkus Advisory Group means: (i) Arkus Advisory; (ii) any entity related to Arkus Advisory including any of its subsidiaries or Affiliates; (iii) any managers, members, shareholders, directors, officers, partners, employees, and agents of the foregoing (i) and (ii); and (iv) any successors and assigns of the foregoing (i)-(iii).
Arkus Advisory Intellectual Property means all trade secrets, trademarks, inventions, discoveries, concepts, designs, formulae, software, methods, strategies, copyrightable subject matter, and know-how, including any and all enhancements and improvements to any of the foregoing acquired or developed by the Arkus Advisory Group and any goodwill associated therewith, such as: (i) all computer programs, software, data and all materials related thereto, including any and all adaptations, modifications, enhancements, documentation and works related thereto; and (ii) information relating to customers and counterparties and activities of the Arkus Advisory Group that is generally not known outside of the Arkus Advisory Group.
Assets means the assets of a Client wherever situated when the Client was formed or accumulated or added to the Client at a later date.
Authorized Person means any authorized person entitled or empowered in a form acceptable to Arkus Advisory to give instructions to Arkus Advisory in respect of the Client or the Services.
Beneficial Owner means the natural person(s) who ultimately owns or has Control over an entity or a part of an entity as defined under the Companies Act (as amended).
Business Day means every day that is not a Saturday, Sunday, or public holiday in the Cayman Islands.
Cayman AEOI Regime means the automatic exchange of information in order to assist tax authorities to deter and detect tax evasion especially relating to assets held in countries where the owner is not resident for tax purposes, as required by international agreements as may be in effect from time to time.
CIMA means the Cayman Islands Monetary Authority.
Clause or Schedule means a clause or a schedule to any Engagement Letter or these Terms of Business, as indicated.
Client means any Person engaging Arkus Advisory to provide Services and shall include such Client’s general partner, managing member, manager, member, shareholder, or director where the context so requires. Reference to Client shall include any Person appointed to represent the Client in the event of the Client being subject to or undergoing any form of “insolvency” (and any insolvency proceeding subject to the relevant law of the underlying jurisdiction).
Confidential Information means information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, clients, suppliers, products, affairs and finances of the Client or Arkus Advisory, as applicable, for the time being confidential to the Client or Arkus Advisory, as applicable, and trade secrets including, without limitation, technical data and know-how relating to the business of the Client or Arkus Advisory or any of their suppliers, customers, clients, agents, distributors, shareholders, members, management, or business contacts whether or not such information (if in anything other than oral form) is marked as “CONFIDENTIAL”.
Control means: (i) the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise; (ii) the ownership, directly or indirectly, of the outstanding: (a) stock, if the entity is a corporation; or (b) partnership interests, membership interests, other entity interests or profit interests, if the entity is a partnership, limited liability company or other entity; or (iii) if the entity is a partnership, limited liability company, Control of the general partner, managing member(s), investment manager, or any Person similar to the foregoing. The terms “Controlling” And “Controlled” shall have correlative meanings with the term “Control.”
Data Protection Law means the Cayman Islands data protection legislation relating to the protection of Personal Data, including, but not limited to, the Regulation.
Director means any director procured by Arkus Advisory, in their personal capacity, to the Client pursuant to an Engagement Letter.
Economic Sanctions Laws means any economic, trade, or financial sanctions, embargoes or restrictive measures administered, enacted or enforced by any of: (i) the United States government; (ii) the United Nations Securities Council; (iii) the European Union and any member state of the European Union; (iv) the United Kingdom; (v) the Cayman Islands; (vi) the Canadian Government; and (vii) the respective governmental institutions of any of the foregoing which administer sanctions including His Majesty’s Treasury, U.S. Treasury Department’s Office of Foreign Assets Control, and the United States Department of State. The Economic Sanctions Laws include the Tax Information Authority (International Tax Compliance (United Stated of America) Regulations) (2021 Revision)) and the Tax Information Authority (International Tax Compliance) (Common Reporting Standard) Regulations (2021 Revision) pursuant to The Tax Information Authority Act (2021 Revision), and the Organization for Economic Co-operation and Development’s Inclusive Framework on Base Erosion and Profit Shifting and the International Tax Co-operation (Economic Substance) Act.
Effective Date shall have the meaning given to such term in the relevant Engagement Letter.
Electronic or Electronically means any form of message made or sent by any type of telecommunication through a digital or electronic device including, but not limited to, the internet, facsimile, email, text message, or instant messaging such as Teams, Slack, and Google Workplace.
Engagement Letter means any agreement in writing (including any agreement evidenced by or contained in application forms) between Arkus Advisory and the Client relating to the Services.
Fee Schedule means the schedule of fees and expenses, attached to the relevant Engagement Letter, as it may be amended from time to time, charged by Arkus Advisory in exchange for its Services to a Client. The Fee Schedule may include any combination of: (i) an Hourly Rate; (ii) a Quoted Fee; and/or (iii) a Retainer Fee.
Governing Documents means the organizational and or governing documents of the Client as in effect from time to time including, but not limited to and as applicable: (i) the trust instrument; (ii) company documentation; (iii) memorandums and articles of association; (iv) partnership agreements; (v) limited liability company agreements; or (vi) any other documents, instruments, or deeds establishing the legal existence of the Client, including any amendments and variations thereto; and (vii) to the extent the Client offers debt or equity interests in itself, any offering materials or prospectuses relating to any such offerings.
Hourly Rate means the relevant hourly rate applied by Arkus Advisory in respect of providing the Services as set forth in the Fee Schedule attached to the relevant Engagement Letter.
Interested Person means: (i) the natural person(s) who ultimately owns or Controls the Client or on whose behalf a transaction or activity is being conducted through the Client and includes, but is not necessary restricted to, a natural person who ultimately owns or Controls, whether directly or indirectly, ten percent (10%) or more of the economic interests in the Client; and (ii) a person who is connected to, has a registered or beneficial interest in, or who has benefited or may benefit from the Client whether such connection, interest, or benefit, is direct or indirect, contingent, or subject to the discretion of any party or who has directly or indirectly contributed Assets to the Client or who is referred to in the relevant Governing Documents or any associated document as entitled to benefit or as having a connection, including, but not limited to, a limited partner or a general partner of an exempted limited partnership, a beneficiary or settlor of a trust, a protector or enforcer of a trust or a shareholder, member, managing member, manager or director of a company.
Law means any laws and includes rules of common law and equity as well as any statute or statutory provision of the Cayman Islands which revises, amends, extends, consolidates or replaces it, or which has been amended, extended, consolidated or replaced by it, and any orders, rules, regulations, acts, laws, instruments, or other subordinate legislation made under it, or made by applicable authority. The use of “Law” or “Laws” in these Terms of Business shall for the avoidance of doubt include the Economic Sanctions Laws, Cayman Islands anti-money-laundering laws, regulations, guidance notes, or Cayman Islands beneficial ownership laws, and the Data Protection Law.
Officers means officers, directors, general partners, limited partners, shareholders, employees, agents, principals, Affiliates, Interested Persons, and Beneficial Owners of the Client, in each case from time to time, and “Officer” means any one of them.
Party or Parties means a Party or Parties to any Engagement Letter and bound by the terms of such Engagement Letter and these Terms of Business. Where a Party or Parties enters into an Engagement Letter by a Person acting as its agent on its behalf, such Party or Parties excludes such agent in the case of Arkus Advisory and includes such agent in the case of any other Party or Parties, save where the relevant Engagement Letter provides to the contrary.
PEP means: (i) a person (including a family member or close associate) who is or has been entrusted with prominent public functions by a foreign country, for example a Head of State or of government, senior politician, senior government, judicial or military official, senior executive of a state owned corporation, and important political party official; (ii) a person who is or has been entrusted domestically with prominent public functions, for example a Head of State or of government, senior politician, senior government, judicial or military official, senior executives of a state owned corporation and important political party official; and (iii) a person who is or has been entrusted with a prominent function by an international organisation like a member of senior management, such as a director, a deputy director and a member of the board or equivalent functions as the same is defined under the Cayman Islands Anti-Money Laundering Regulations (2023 Revision), as the same may be amended from time to time.
Person means an individual, corporation, partnership, association, trust, joint venture, limited liability company, government authority, unincorporated organization, trust, association, or other entity.
Personal Data means personal information relating to an identified or identifiable living individual as defined in the Data Protection Law which is disclosed or made available to Arkus Advisory by or on behalf of the Client in connection with the Services.
Privacy Policy means the Client Privacy Policy (as amended or altered from time to time) and available at https://www.arkusadvisory.com/legal/client-privacy-policy.
Quoted Fee means the all-in fee quoted by Arkus Advisory in respect of providing the Services as set forth in the Fee Schedule attached to the relevant Engagement Letter.
Registrar means, as applicable, the Registrar of Exempted Limited Partnerships, the Registrar of Limited Liability Companies, or the Registrar of Companies, in each case in and for the Cayman Islands.
Regulation means all applicable data protection and privacy legislation in force from time to time in the Cayman Islands including the Data Protection Act (as Revised) (and regulations made thereunder) or any successor legislation, and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
Relevant Person means the Client, Interested Persons, Beneficial Owners, and Authorized Persons.
Representative means any officers, directors, general partners, limited partners, shareholders, employees, managers, members, managing members, agents, principals, and Affiliates of a Party.
Retainer Fee means the relevant retainer fee payable by the Client to Arkus Advisory in respect of providing the Services as set forth in the Fee Schedule attached to the relevant Engagement Letter.
Services means the services to be provided by Arkus Advisory including but not limited to the services described in an Engagement Letter.
Tax Obligations means tax declarations, payment, and reporting obligations including, but not limited to, those relating to the Client and the Assets.
Terms of Business means these Terms of Business.
Third Parties Law means the Contracts (Rights of Third Parties) Act (as Revised).
Unlawful means prohibited or restricted by Law or regulation in any relevant jurisdiction or by international sanctions.
US$ means the lawful currency of the United States of America.
Working Day means any day on which Arkus Advisory is open for business.
2. Interpretation
For the purpose of these Terms of Business and any Engagement Letter:
- capitalized terms used but not otherwise defined in an Engagement Letter shall have the meanings ascribed to such terms in these Terms of Business.
- reference to any statute or statutory provision shall include a reference to any statute or statutory provision which amends, extends, consolidates, or replaces the same (save to the extent that any such amendment, extension, consolidation, or replacement would impose more onerous obligations than otherwise exists at the date of the relevant Engagement Letter) or which has been amended, extended, consolidated, or replaced by the same and shall include any orders, regulations, instruments, or other subordinate legislation made under the relevant statute or statutory provision.
- use of the singular includes the plural and vice versa and any gender includes all genders.
- save as otherwise provided herein or as the context may otherwise require, expressions in these Terms of Business which are defined by Law, or the Governing Documents shall have the meanings ascribed to them therein.
- headings in these Terms of Business and any Engagement Letter are included for convenience only and shall not affect the construction or interpretation of these Terms of Business or any Engagement Letter.
- written, in writing, and maintained in writing includes all modes of representing, reproducing, or maintaining words in visible form, including in the form of an Electronic record.
- the word “including,” and words of similar import shall mean “including, without limitation,” unless otherwise specified. The Terms of Business and any Engagement Letter shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.
- reference to “Engagement Letter” or any agreement or document referenced in any Engagement Letter shall be construed as a reference to such Engagement Letter or agreement or document referenced in any Engagement Letter as amended, varied, supplemented, novated, replaced, or restated from time-to-time.
- recitals and schedules form part of any Engagement Letter and shall have effect as if set out in full in the body of such Engagement Letter.
- as used in these Terms of Business and as incorporated into any Engagement Letter, Arkus Advisory and the Indemnified Persons (as defined herein) shall be deemed not to have engaged in conduct amounting to “actual fraud or wilful default” until and unless the same is found in a final non-appealable judgment.
3. Amendments
Arkus Advisory may, in its sole discretion, at any time and from time-to-time change, alter, adapt, add or remove any of the provisions contained in these Terms of Business and if Arkus Advisory does so, Arkus Advisory will give notice by posting any such changes on its website (https://www.arkusadvisory.com/) making clear the date on which the changes to these Terms of Business come into effect. Any variation to the Fee Schedule shall be notified to the Client by Arkus Advisory in accordance with Clause 10.6. The current version of the Terms of Business is available from Arkus Advisory at any time on request. The Client’s continued use of Arkus Advisory’s Services following any changes to these Terms of Business shall constitute acceptance of those changes and the Client agrees to be bound by the current version of these Terms of Business and any Engagement Letter that is varied, with immediate effect.
4. Miscellaneous Provisions
Entire Agreement: Any Engagement Letter includes these Terms of Business and constitutes the entire agreement between the Parties in respect of the subject matter hereof and supersedes any prior agreement, arrangement or understanding between the Parties in respect thereof which shall be deemed to have been terminated by mutual consent. Execution by the Client of its Engagement Letter confirms the Client’s agreement to, and acceptance of, these Terms of Business.
Severability: If any provision of these Terms of Business or any Engagement Letter is found by any court or arbitrator to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions which shall remain in full force and effect. If any provision of these Terms of Business or any Engagement Letter is found to be invalid or unenforceable and would be valid or enforceable if some part of the provision were modified or removed, the offending provision in question shall apply with such modification(s) only to such extent as may be necessary to make it valid. The limitation of liability and indemnity provisions in these Terms of Business shall apply to the furthest extent permitted by applicable Law.
Official Language: All communications between Arkus Advisory and the Client will be in English. If a translation is provided of these Terms of Business, any Engagement Letter or any communication, the English language version will be the only legally binding version and will prevail if there are any inconsistencies in language.
No Waivers: The delay or failure by any Party to object to or take affirmative action with respect to any breach of these Terms of Business or any Engagement Letter by the other Party shall not be construed as a waiver of such breach. Time is of the essence as regards any date or period mentioned in these Terms of Business or any Engagement Letter, save to the extent that any such date or period is varied by agreement between the Parties and, if so varied, time shall remain of the essence as regards any date or period as so varied.
Third Party Beneficiaries (Indemnified Parties): For the purposes of the Third Parties Law, each Indemnified Person (as defined herein) that is not a party to any Engagement Letter is an intended third-party beneficiary under these Terms of Business and such Engagement Letter. However, the Parties to any Engagement Letter may rescind or vary such Engagement Letter (including any variation so as to extinguish or alter a third party’s entitlement to enforce any provisions of such Engagement Letter or these Terms of Business) with the consent of any such third party.
Counterparts: Any Engagement Letter may be executed in separate counterparts (including by means of portable document format (.pdf) or other Electronic means), each of which is an original but all of which taken together shall constitute one and the same instrument. Electronic signatures (including DocuSign, PandaDoc, and AdobeSign) delivered by email, portable document format (.pdf) transmission, or other electronic means, shall be sufficient and binding as if they were originals and such delivery shall constitute valid delivery of such Engagement Letter.
Force Majure: No Party shall be in breach nor liable for delay in performing, or failure to perform, any of its obligations under any Engagement Letter if such delay or failure results from events, circumstances or causes beyond its control. In such circumstances, the affected Party shall be entitled to a reasonable extension of time for performing such obligations. If those obligations are not performed within such extension of time, the Party to whom such obligation is owed may terminate any Engagement Letter immediately by notice in writing.
Survival: Clauses that relate to limitation of liability and indemnity, assignment, language, confidentiality, notices, governing law, and jurisdiction shall survive the termination of any Engagement Letter.
Purpose of Documents; Services: Documents prepared by Arkus Advisory in respect of the Services are the property of Arkus Advisory. Arkus Advisory accepts no responsibility for the use of these documents for cases or circumstances different from those in respect of which they were originally prepared. Any assessments, advice, or recommendations from Arkus Advisory are intended for the internal use of the Client only. The Client represents and warrants that it will not copy, refer to, or disclose to any third party any advice, assessments or recommendations provided by Arkus Advisory without Arkus Advisory’s prior written consent. The foregoing sentence applies with respect to anything the Client may learn about Arkus Advisory’s ideas, concepts, models, information, know-how, methodology, etc.
Document Retention: Arkus Advisory undertakes to keep all records in relation to the Client after the termination of any Engagement Letter for such a period as may be prescribed by Law after which time such records may be destroyed. Arkus Advisory is authorized to maintain the statutory registers of the Client and any other records relating to the Client or its affairs Electronically and to produce at any time during the course of legal proceedings, copies or reproductions of these documents made by photographic, photostatic or data processing procedures as juridical proof of the contents thereof.
Waiver (Generally): Save in respect of variations of these Terms of Business and any Engagement Letter in accordance with Clause 3 hereof, an Engagement Letter may only be varied by an instrument in writing signed by all Parties thereto. Any variation of an Engagement Letter shall be annexed thereto and together they shall constitute one Engagement Letter. No waiver of any right or rights arising under any Engagement Letter shall be effective unless such waiver is in writing and signed by the Party whose rights are being waived. A waiver by any Party of any breach of any of the terms, provisions or conditions of any Engagement Letter or the acquiescence of such Party in any act (whether commission or omission) which, but for such acquiescence, would be a breach as aforesaid shall not constitute a general waiver of such term, provision or condition or of any subsequent act contrary thereto.
5. Applicability of These Terms of Business
Unless expressly provided otherwise, these Terms of Business apply to all Services, Engagement Letters, offers, proposals, schedules, offers and estimates made or provided by Arkus Advisory. The legal relationship between the Client and Arkus Advisory is governed by these Terms of Business with the terms set out in any Engagement Letter and, to the extent applicable, the Governing Documents. These Terms of Business are expressly incorporated by reference into each and every Engagement Letter.
In the event of a conflict between these Terms of Business and the terms of any Engagement Letter, the latter shall prevail. In the event of a conflict between the terms of the Governing Documents and those of an Engagement Letter, the latter shall prevail to the fullest extent provided by Law. These Terms of Business shall also apply to any Engagement Letter entered into prior to the effective date of these Terms of Business, save as otherwise provided in writing between Arkus Advisory and a Client.
6. Engagement
Arkus Advisory will, in each Engagement Letter, delegate an Appointee who shall be primarily responsible for the delivery of the Services. In each and every case, Arkus Advisory has, in its sole discretion, the right to replace such Appointee and any other Appointee providing Services to a Client with another Appointee, so long as such replacement does not reduce the quality of Services or incur additional costs to the Client.
Each engagement is defined by the specifications set forth in the applicable Engagement Letter. Should unforeseen circumstances arise that affect the content and/our scope of Arkus Advisory’s Services to a significant extent, Arkus Advisory, in its discretion, is entitled to renegotiate the relevant aspects of such Engagement Letter.
Arkus Advisory has no obligation to update advice, recommendations, or assessments based on circumstances that occur after Arkus Advisory has supplied the Services or after the engagement has been terminated.
The Client may only rely on final written deliverables and not on draft deliverables.
If the Client should assert that the Services are inconsistent with the Engagement Letter, Arkus Advisory has the right to rectify any defect or imperfection, provided rectification is not deemed futile.
7. Observance of Laws
The Client will comply, and shall procure that all Relevant Persons comply, with all Laws that apply to the Client and shall immediately, and shall procure that all Relevant Persons shall immediately, notify Arkus Advisory of any breach, or any alleged or suspected breach, of any such Laws.
The Client undertakes and warrants to Arkus Advisory that:
- no monies paid to the Client as equity and all other funds paid to or passing through the Client represent the proceeds of, or have been paid in furtherance of, any Unlawful activity, and the Client shall procure that all Relevant Persons ensure that no such monies or funds represent such proceeds or have been so paid.
- at the date of, and throughout the term of, any Engagement Letter, the Client complies and will comply with all applicable Laws in any jurisdiction and will procure that all Relevant Persons so comply and will so comply.
- the Client will not handle, conceal, or in any way utilize funds related to the proceeds of any criminal or otherwise Unlawful conduct including, but not limited to, tax fraud or evasion, money laundering, drug trafficking, terrorist financing, proliferation financing, or false accounting, and the Client shall ensure that no Relevant Person has done so or will do so.
- all Assets introduced to the Client (except Assets introduced by Arkus Advisory) are, or will be, the lawful property or under the lawful Control of the person introducing such Assets prior to such introduction and will not be connected in any way with any criminal or otherwise Unlawful activity or be the proceeds of crime or connected with terrorist financing or proliferation financing or anything similar.
- the Client will provide full details of the provenance and source of all the Assets introduced to the Client by any Person immediately upon the request of Arkus Advisory.
8. Compliance
The Client shall promptly deliver to Arkus Advisory, and shall procure that all Relevant Persons shall promptly deliver to Arkus Advisory, to allow Arkus Advisory to comply with its obligations pursuant to any Engagement Letter and to provide the Services, all documents, notices and information (in original form or duplicates of the validly executed originals) including, without limitation, notices and minutes of meetings of Officers, resolutions (including written resolutions) passed by the Officers, notices of appointment as, or letters of resignation from, any Officer, notice of any changes in the particulars relating to any Officer, offering documents relating to all or part of the Client’s investors’ interests, including any limited partners interests, charges or mortgages affecting any property of the Client, instruments of transfer, cancelled certificates, powers of attorney, financial statements (if any) and notice of any event effecting the automatic dissolution of the Client or of any resolution to dissolve the Client.
The Client shall keep records and underlying documentation of the Client in such form as: (i) are sufficient to show and explain the Client’s transactions; and (ii) will, at any time, enable the financial position of the Client to be determined with reasonable accuracy, including accounts and records (such as invoices, contracts and similar documents) in relation to: (a) all sums of money received and expended by the Client and the matters in respect of which the receipt and expenditure takes place; (b) all sales and purchases of goods by the Client; and (c) the Assets and liabilities of the Client.
The Client shall maintain such records as are required to be kept under applicable Law and such records shall be kept: (i) in written form; or (ii) either wholly or partly as electronic records complying with the requirements of the Law. Where any such records or underlying documentation are kept at a place other than at the office of Arkus Advisory, the Client shall provide Arkus Advisory with a written record of the physical address of the place or places at which the records and underlying documentation are kept including the name of the person who maintains and controls the Client’s records and underlying documentation. Where any of the places at which the records and underlying documentation are kept or the name of the person who maintains and controls the Client’s records and underlying documentation change, the Client shall provide Arkus Advisory with the physical address of the new location of the records or the name of the new person within fifteen days of the change.
The Client shall retain records and underlying documentation for a period of at least five years from the date: (i) of completion of the transaction to which the records and underlying documentation relate; or (ii) the Client terminates the business relationship to which the records and underlying documentation relate, and for these purposes “business relationship” means a continuing arrangement between the Client and one or more persons with whom the Client engages in business, whether on a one-off, regular or habitual basis.
The Client shall promptly deliver and shall procure that all Relevant Persons shall promptly deliver to Arkus Advisory, as requested by Arkus Advisory from time to time, such documents (including, without limitation, notarized copies of original documents, notarized affidavits and letters of reference) as Arkus Advisory may regard as necessary, in its absolute discretion, to:
- establish the identity of each Interested Person or Beneficial Owner and each person having or exercising Control or significant influence over the Assets of such Interested Person or Beneficial Owner.
- establish the identity of each Interested Person or Beneficial Owner and each person having or exercising Control or significant influence over the Assets and any other person authorized by the Client to provide instructions to Arkus Advisory in relation to the Client and its Assets.
- establish the source of funds received or receivable by the Client and the nature of the Client’s business.
- verify that any funds received or receivable by the Client do not represent the proceeds of criminal conduct and that the Client’s business activities are lawful.
Without prejudice to any other provision of these Terms of Business:
- the Client shall not make any material changes to any Governing Document or other document which might reasonably be expected to materially affect Arkus Advisory or the performance by it of the Services under any Engagement Letter or these Terms of Business without Arkus Advisory providing its prior consent to such proposed amendment or supplement.
- the Client shall promptly deliver to Arkus Advisory copies of all amendments made to the Governing Documents.
- the Client shall not undertake business with the public in the Cayman Islands other than companies resident in the Cayman Islands, or so far as may be necessary for the carrying on of the business of the Client exterior to the Cayman Islands be deemed, in the absence of written instructions to Arkus Advisory delivered prior to January 1st in each year, to authorize and instruct Arkus Advisory to execute and deliver to the Registrar, on the Client’s behalf, any annual return to be made by the Client pursuant to the Law and unless otherwise advised by the Client in accordance with this Clause.
- Arkus Advisory shall be entitled to assume that the Client has complied with its obligations pursuant to these Terms of Business without further inquiry and the Client shall indemnify Arkus Advisory, on demand, against any loss or liability arising from any such assumption or the actions of Arkus Advisory in reliance of it.
Without prejudice to the generality of Clause 8.1 hereof, the Client shall promptly supply, and shall procure the supply by all Relevant Persons immediately, to Arkus Advisory of all such information, documents and instructions as are necessary or are requested by Arkus Advisory in order to fulfil its obligations under all applicable Laws relating to the prevention of money laundering, beneficial ownership, terrorism financing, proliferation financing, financial crime or breaches of international sanctions, including Economic Sanctions Laws and all other Laws applicable to the Client or any Relevant Person including, but not limited to, where applicable:
- an explanation in writing of the nature of all relevant activities, an indication of actual and expected turnover and the source of funds;
- evidence satisfactory to Arkus Advisory of the identity of any Relevant Person; and
- such other information and documentation as Arkus Advisory may require in relation to any Relevant Person or activities of the Client including, but not limited to, in relation to the steps taken under Clause 8.2 above.
The Client shall promptly notify in writing, and shall procure that all Relevant Persons shall promptly so notify, Arkus Advisory of any corporate action, changes to the Officers, partners, trustees, Interested Persons, Beneficial Owner or Governing Documents of the Client or the creation or intended creation of any charge, mortgage or other security interest over any of its Assets or property and shall promptly supply to Arkus Advisory all such information and documents in connection therewith including, but not limited to, those requested by Arkus Advisory.
The Client shall promptly notify in writing, and shall procure that all Relevant Persons shall promptly so notify, Arkus Advisory if the Client or they:
- know or have reasonable cause to believe that any of the information provided to Arkus Advisory about an Interested Person or Beneficial Owner has changed or that the manner in which such Interested Person or Beneficial Owner holds their interest or Control has changed and provide details of any such changes to the satisfaction of Arkus Advisory;
- know or have reasonable cause to believe that the Client or a Relevant Person is or becomes a PEP;
- know or have reasonable cause to believe that the Client or a Relevant Person is subject to or affected by any sanctions or other restrictions; or
- become aware of any event which may have a material effect on the Client, its Assets or activities, Arkus Advisory’s willingness, or ability to provide the Services or on Arkus Advisory having sufficient liquid funds to administer the Client.
The Client acknowledges and agrees that:
- Arkus Advisory is not a public accounting, auditing or law firm and does not provide public accounting, auditing or legal services or advice.
- Arkus Advisory is not registered or licensed under the Companies Management Act (Revised) nor the Securities Investment Business Act (Revised) and therefore cannot and will not: (i) assume control of the whole or a substantial part of the Assets of a Client; (ii) engage in the business of company management for a Client for profit or reward; (iii) provide Services involving the control of the whole or a substantial part of the Assets of a Client; (iv) provide Services that entail Arkus Advisory to exercise discretion regarding the full distribution of the Assets on behalf of a Client; (v) manage securities belonging to a Client in circumstances where Arkus Advisory would be able to exercise discretion on behalf of the Client; (vi) advise on securities where the advice is given to a Person in their capacity as an investor or potential investor or in that Person’s capacity as an agent for an investor or potential investor and that relates to the merits of dealing in, including selling, a particular security or the exercise any right conferred by a security to deal in such security; (vii) act as registered agent or a registered office for any Client; (viii) engage in the filing of statutory forms or resolutions for any Client with the Registrar; and (ix) carry on any securities investment business other than as a necessary or incidental part of performing the Services;
- Arkus Advisory owns the right, title and interest in and to Arkus Advisory Intellectual Property and the Client shall not take any action that is inconsistent with the ownership of Arkus Advisory Intellectual Property by Arkus Advisory; furthermore nothing in these Terms of Business or any Engagement Letter, and no use of Arkus Advisory Intellectual Property by or on behalf of the Client pursuant to these Terms of Business or any Engagement Letter, shall vest in the Client, or be construed to vest in the Client, any right of ownership in or to Arkus Advisory Intellectual Property. The Client shall at all times maintain confidentiality with respect to any Arkus Advisory Intellectual Property and Arkus Advisory Confidential Information and shall not disclose any such Arkus Advisory Intellectual Property or Arkus Advisory Confidential Information to any other Person.
- the Client has provided all information requested by Arkus Advisory prior to the Effective Date which can reasonably be expected to affect the decision of Arkus Advisory to determine whether it may provide the Services to the Client. The Client shall immediately make available to Arkus Advisory any further relevant information that might reasonably be expected to materially affect the decision of Arkus Advisory to provide the Services, or for any Appointee to continue to act in such capacity.
- all information provided by the Client to Arkus Advisory is true, accurate and not misleading in all respects as of the Effective Date and such information and any information provided at a later date by the Client to Arkus Advisory will continue to be true, accurate and not misleading throughout the term of the applicable Engagement Letter. The Client will promptly notify Arkus Advisory if any information provided to it ceases to be true, accurate and/or not misleading, in any material respect during the term of the applicable Engagement Letter.
- the Client has established anti-money laundering, counter-terrorist financing and proliferation financing measures in accordance with the requirements of any Laws applicable to it.
- the Client is sophisticated in financial matters and has received such legal and tax advice as it deems necessary.
- the Client will fulfil its obligations and duties under these Terms of Business and the applicable Engagement Letter in good faith and in a timely and diligent manner.
- Arkus Advisory is entitled to use sanitized and anonymized information regarding the Services for internal training purposes, knowledge management, and potential marketing purposes.
Arkus Advisory, any Affiliate of Arkus Advisory, and any Appointee may refuse to perform any or all of its obligations under any Engagement Letter and may decline to act if, in their sole discretion, they determine that there would be a breach of a Governing Document.
Arkus Advisory, any Affiliate of Arkus Advisory, and any Appointee may refuse to perform any or all of its obligations under any Engagement Letter if, in their sole discretion, they determine that to do so would constitute a criminal or otherwise Unlawful offence in any jurisdiction in which they operate or would otherwise contravene any Laws which apply to the them or the Services, and they will inform the Client promptly of any decision to refuse to perform an obligation under any Engagement Letter made in accordance with this Clause unless prevented from doing so by applicable Law. The Client shall promptly inform Arkus Advisory:
- of any Appointment and the Client agrees that Arkus Advisory may in its absolute discretion:
- at the Client’s expense obtain and rely on advice from a qualified lawyer in any relevant jurisdiction as to the powers of the person appointed under any such Appointment;
- comply with any requirements or requests of any such person; and
- rely on instructions from any person that it believes to be authorized to give instructions under any Appointment. Arkus Advisory will inform the Client of any Appointment as soon as reasonably practicable after it becomes aware of any such Appointment.
- of the appointment of any officer under anti-money laundering laws or automatic exchange of information laws and the Client agrees that Arkus Advisory may in its absolute discretion:
- comply with any requirements or requests of any such person; and
- rely on instructions from any person that it believes to be authorized to give instructions under any such appointment.
The Client shall promptly notify, in writing, and shall procure that all Relevant Person shall promptly so notify, Arkus Advisory of any threatened, pending or actual litigation against the Client, or any Relevant Persons in any jurisdiction including any action, petition or other proceedings or steps (whether court-related or not) which have been proposed to be or have been taken in respect of the Client or any Relevant Persons including, but not limited to, winding-up, striking off any register, arrangement with creditors, insolvency, reorganization, or any analogous procedure.
The Client acknowledges that Arkus Advisory may, at its absolute discretion, decline to execute and/or deliver any annual return required to be made by the Client pursuant to the Law without incurring any penalty for doing so provided that Arkus Advisory shall serve written notice on the Client to that effect not less than 7 days prior to the last date on which the annual return in question can be timely filed.
Upon delivery of an invoice from Arkus Advisory, the Client shall, no later than December 31st in each year, pay to Arkus Advisory an amount equal to the annual fees payable to the Registrar in respect of the Client for the following calendar year and Arkus Advisory shall not be responsible for any late payment penalties which the Client may incur as a result of any failure by the Client to render timely payment pursuant to this Clause to Arkus Advisory.
9. Tax Obligations
The Client and all Relevant Persons have sole responsibility for the management of the Client’s and their respective tax and legal affairs, including, but not limited to, making any applicable filings and payments, complying with any applicable Laws including, but not limited to, fulfilling all reporting and declaration obligations in any jurisdiction. Arkus Advisory does not provide legal or tax advice. Arkus Advisory recommends that the Client and all Relevant Persons obtain the Client’s and their own independent advice as to the fiscal consequences of the Client and its affairs and any Services provided to it by Arkus Advisory. Such advice should be updated on a regular basis, and immediately if any relevant circumstances change.
The Client undertakes and warrants that: (i) the Client has been, is, and at all times will be, compliant with all of the Client’s Tax Obligations; and (ii) the Client has fulfilled all Tax Obligations and has made and will make all tax and other returns and provide all reporting required to be made in any relevant jurisdictions in respect of the Client and any benefits received from the Client.
The Client shall inform Arkus Advisory immediately in writing if the Client becomes aware of any breach of Clause 9.2 above.
The Client shall inform Arkus Advisory within 90 days of the occurrence of any change in the Client’s circumstances and which are relevant to Tax Obligations or otherwise, of the Client or any of the Services (including, but not limited to, address, nationality, residence or domicile), and the Client shall procure that all Relevant Persons do so with regard to any such changes in their circumstances.
If the Client or any Relevant Person are subject to tax or reporting requirements of any nature in any jurisdiction or if the tax or governmental or other authorities of any jurisdiction consider that the Client or any Relevant Person may be subject to tax or reporting in that jurisdiction (even if the Client or the Relevant Person are not), Arkus Advisory may be required by applicable law to provide information or documentation and/or to report on an on-going basis information about the Client or any Relevant Person on an individual or aggregated basis to any relevant tax or reporting authority and, if so required, Arkus Advisory will do so at the Client’s expense.
If the Client or any Relevant Person is subject to continued reporting obligations under the Cayman AEOI Regime, the Client must appoint a delegate to fulfill such obligations.
10. Renumeration, Government Fees, and Regulatory Fees
Arkus Advisory and any Appointee shall be entitled to fees and to be reimbursed for expenses in accordance with the applicable Fee Schedule, Engagement Letter, other written agreement between the Client and Arkus Advisory, or any notice given by Arkus Advisory to the Client updating or revising a Fee Schedule.
Unless otherwise agreed between Arkus Advisory and Client, fees shall be due and payable on the Effective Date and thereafter shall be due and payable by the Client upon delivery of an invoice from Arkus Advisory.
Unless otherwise agreed between Arkus Advisory and the Client, any Retainer Fee shall be due and payable by the Client upon the Effective Date of such Engagement Letter.
Interest on outstanding fees shall be applied pursuant to Clause 11.3.
Notwithstanding any other provision of these Terms of Business or any Engagement Letter, and with the written consent of Arkus Advisory, the obligations of the Client to pay fees to Arkus Advisory may be discharged or satisfied by any third party, subject to the receipt by Arkus Advisory of appropriate documentation in respect of such third party where required.
Arkus Advisory may increase any of its fees from time to time and in the event that following notification of any such increase (whether upon delivery of an invoice or otherwise) the Client continues to engage Arkus Advisory to provide the Services, the Client shall be deemed for all purposes to have consented to such increase(s) with effect from such date (if any) specified in the notice and otherwise with effect from the date of such notification.
All payments to be made to Arkus Advisory shall be made in cleared funds, without any deduction of any kind including, but not limited to, without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by Law. If the Client is compelled to make any such deduction, the Client will pay to Arkus Advisory such additional amounts as are necessary to ensure receipt by Arkus Advisory of the full amount which Arkus Advisory would have received but for the deduction.
Arkus Advisory shall be entitled to recover from the Client all expenses and disbursements (including, but not limited to, filing and registration fees, charges for messengers and couriers, printing, postage, photocopying, scanning, telephone charges, secretarial overtime and other similar costs and expenses) incurred or paid by Arkus Advisory on the Client’s behalf or otherwise, including incurred by any of its delegates, any Appointee, and/or in each case, any of their staff in the performance of or relating to the Services, and including reasonable travel related expenses incurred by such delegates, any Appointee, and/or in each case, any of their staff in the course of carrying out their duties under any Engagement Letter.
Incidentals including phone calls, printing, and copying charges shall be charged at 3% of the value of invoices for the fees and/or time costs.
Arkus Advisory may in its sole discretion allocate fees, disbursements, and expenses between:
- income and capital;
- different interests in income and capital;
- different parts of the Client; and
- different interests in the Client.
Arkus Advisory may apply funds received from the Client in payment of its fees, expenses and disbursements or other costs relating to any Engagement Letter prior to paying any government or other fees due on behalf of the Client.
Arkus Advisory may deduct all unpaid fees, expenses and disbursements and interest due to it from Assets and/or may retain Assets until same have been paid.
If at any time during the provision of the Services, there are insufficient liquid funds in the Client to pay to Arkus Advisory any fees, expenses, disbursements or interest which have become payable, the Client will provide or procure the provision to Arkus Advisory of sufficient funds to do so on demand.
If the Client fails to provide sufficient funds on demand as required by Clause 10.13, Arkus Advisory may, subject to the Law, sell or realize Assets of the Client in order to pay fees, expenses or disbursements and interest which are due to Arkus Advisory.
Without prejudice to its rights to terminate any Engagement Letter, Arkus Advisory shall have no obligation to provide and may suspend any Services if the Client is in default concerning the payment of any fees, expenses, disbursements, or interest to Arkus Advisory.
Arkus Advisory shall not be responsible for any losses suffered in consequence or related to delayed or failed payment howsoever caused including but not limited to by way of Electronic funds transfers received with insufficient or incorrect details or non-receipt of transfer advice.
Payment by Arkus Advisory of governmental or regulatory fees on the Client’s behalf is subject to the Client having provided Arkus Advisory funds to do so, and payment of any outstanding amounts due to Arkus Advisory. Arkus Advisory shall invoice the Client in respect of annual fees payable to any governmental or regulatory entity, and upon delivery of an invoice the Client shall promptly pay or procure the payment to Arkus Advisory, and in any event no later than the date for payment stated in the invoice. If payment is made by wire transfer, the Client must inform Arkus Advisory of the wire instructions, including the dates and amount of the transfer, issuing bank, and invoice number. Arkus Advisory shall not be liable for any late payment, penalties, charges, or expenses of any kind for which the Client may be liable as a result of the Client’s delayed or failed payment of fees, or funds to Arkus Advisory for payment of fees, howsoever caused.
11. Account and Billing; Liens
Any monies retained in Arkus Advisory’s client accounts, whether held: (i) on account of Arkus Advisory’s fees or disbursements; (ii) pending resolution of a transaction or as proceeds of a completed transaction; (ii) as settlement monies (whether received from or payable to a third party); or (iii) howsoever otherwise held, are or will be placed in a licensed bank (Client Bank). In the event of the Client Bank being subject to or undergoing any form of “insolvency” (any insolvency proceeding subject to the relevant law of the applicable jurisdiction) (Insolvency), Arkus Advisory shall not be liable for any losses, damages, liabilities, claims, costs or expenses howsoever arising from the Insolvency, including without limitation, the loss of any or all of the monies held by a Client Bank as referred to above. Arkus Advisory shall not be responsible for seeking or undertaking any due diligence on any Client Bank’s financial position.
Invoices for fees and all other amounts due will be delivered to the Client continuously, at the frequency set forth in the Engagement Letter, and by email or via Arkus Advisory’s web-based billing portal and the Client undertakes to provide at all times a current and valid email address for this purpose. Unless agreed otherwise, any retainer invoice issued by Arkus Advisory must be paid in full upon delivery prior to the commencement of the provision of Services. Any subsequent invoices must be paid in full by the Client upon delivery by Arkus Advisory.
Where an invoice is not paid in full within 45 days of the invoice, and unless or otherwise agreed in a writing signed by Arkus Advisory, interest shall become payable on any unpaid amount of the invoice from the date of the invoice until the date of payment at an annual rate of USD prime rate + 12% (or, if lower, the maximum amount permitted by law). For any invoices not paid in full within 90 days of the date of the invoice, Arkus Advisory may rescind and forfeit any discounts or preferential fee arrangements which otherwise applied to the relevant invoice and re-invoice at the full amount which otherwise would be payable, with interest from the date of the original invoice, as above. The Client may not offset amounts due to Arkus Advisory against claims the Client has, or purports to have, against Arkus Advisory, including any price reduction claims. In the event that it becomes necessary to engage collection agents, tracing agents, lawyers or other third parties to secure payment of any invoice which has been outstanding for more than 120 days, the Client will be responsible, and shall immediately reimburse Arkus Advisory, for the payment of all charges relating thereto on an indemnity basis which shall be added to the relevant invoice with interest as above. Arkus Advisory shall exercise a lien over all documents held by it in relation to the Client or the Client in respect of any unpaid fees and disbursements, or any other sums owed to it.
As per Clause 16.10 below, Arkus Advisory shall not be responsible for any losses suffered in consequence of, or related to, any third party act or omission.
12. Communication
Arkus Advisory shall contact the Client or any Authorized Person by post, telephone or Electronic communication using the details that the Client has provided to Arkus Advisory.
Arkus Advisory may record or monitor phone calls and Electronic communications referenced in Clause 12.1, above. Such recordings may be used as evidence in the event that there is a dispute.
The Client may contact Arkus Advisory through the Client’s usual contact by post, telephone or Electronic communication but the Client should note that notices must be given in accordance with Clause 19 of these Terms of Business. The Client acknowledges and accepts that with Electronic communication there is a risk of non-receipt, delayed receipt, inadvertent misdirection, or interception by third parties. Arkus Advisory takes reasonable precautions to ensure no viruses are present in emails sent by its Representatives, but the Client agrees that that Arkus Advisory shall not be held responsible or liable whatsoever for any damage or loss howsoever caused including, but not limited to, by viruses or by communications which are corrupted or altered after dispatch, or any other failure of Electronic communication.
An Authorized Person may be required to establish security procedures or take other steps before being permitted by Arkus Advisory to give instructions to Arkus Advisory on the Client’s behalf.
Each of Arkus Advisory and any Appointee may refuse to accept any instruction if it is not in writing or if it believes in its sole discretion that:
- it was not given by the Client or any Authorized Person or does not comply with any applicable requirements, including, without limitation, those relating to the Client;
- it is not clear, contains incorrect information or is illegible;
- it appears to be inconsistent with another instruction received from the Client or any Authorized Person;
- by carrying out the instruction, Arkus Advisory or any Appointee may be in breach of any applicable Law or otherwise be acting in an Unlawful manner or become exposed to action or censure from any government, regulator, or law enforcement agency;
- to carry out the instruction would damage its reputation or contravene its internal policies; or
- it would be impracticable or impossible to do so.
Arkus Advisory and any Appointee shall not be liable for any losses of any nature howsoever caused arising from a refusal to accept an instruction in accordance with Clause 12.5, above.
Arkus Advisory and any Appointee are entitled to, and will (and subject to Clause 12.5) continue to act on instructions received from any Authorized Person until Arkus Advisory actually receives written notice from the Client that he or she is no longer so authorized.
The Client agrees that Arkus Advisory shall not be liable for any liabilities, loss, damages, obligations, penalty, proceedings, claims, judgments, demands, costs, expenses or disbursements of any kind (including legal fees and expenses), whatsoever suffered or incurred by the Client at any time as the result of late receipt or non-delivery of correspondence or other communication which Arkus Advisory receives on the Client’s behalf, or as a result of any action taken by Arkus Advisory.
Any emails and any attachment(s) to emails sent by Representatives of the Arkus Advisory Group are intended only for the use of the person or entity to which such emails are addressed and may contain confidential and/or proprietary information. Any review, retransmission, dissemination, or other use of, or taking of any action in reliance upon, such emails and their attachment(s) by persons or entities other than the intended recipients is prohibited. When addressed to a Client, any opinions or advice contained in such emails are subject to these Terms of Business and the governing Engagement Letter. Opinions, conclusions, and other information in such emails and any attachments thereto that do not relate to the Services are neither given nor endorsed by Arkus Advisory.
13. General Provisions; Confidentiality
Arkus Advisory is expressly authorized to act on instructions or advice from the Client, any Authorized Person, or any person it believes to be duly authorized to give instructions or advice, in all matters. Such instructions or advice may be communicated orally or in writing and with or without authentication.
Each Party undertakes to the other to use its reasonable endeavors to procure that no breach of any Law occurs in connection with the operation of Client’s business.
Arkus Advisory shall use its reasonable endeavors to ensure that any Appointee provided to the Client pursuant to an Engagement Letter shall be suitably qualified, fit, and independent for its role and suitably trained in respect of applicable Law.
The Client undertakes to Arkus Advisory that the Client shall use the Client’s reasonable endeavors to procure that the Client’s business is not carried on in breach of any Law and that the Client shall keep Arkus Advisory informed on a timely basis of all material developments in the Client’s business and other activities.
The Client shall ensure that appropriate service providers, as reasonably determined by the Directors, shall be engaged to assist the Directors with their duties.
During the continuance of any Engagement Letter, neither Arkus Advisory nor any Appointee shall be required to devote their whole time and attention to the business of the Client and Arkus Advisory and any Appointee may, without the prior written consent of the board of directors from time to time of the Client:
- provide Services of a like nature to any other person, firm or company;
- engage in any other business; or
- be concerned or interested in any other company.
Arkus Advisory shall keep confidential all Client Confidential Information including documents, materials and other information reflecting or relating to Client Confidential Information and neither Arkus Advisory nor any Appointee shall, without the prior written consent of the Client, disclose any of the aforesaid unless:
- the Confidential Information concerned is or becomes a matter of public knowledge otherwise than as a result of a breach by Arkus Advisory of its obligations pursuant to this Clause 13.7;
- Arkus Advisory shall determine, in good faith, that such disclosure is required by any law, order of court or pursuant to any direction or demand made by a government or regulatory body, compliance with which is within the general practice of persons to whom it is addressed; and
- such disclosure is made to other professional advisers who receive the information subject to a duty of confidentiality.
Nothing in these Terms of Business shall prevent Arkus Advisory or its Representatives from:
- reporting a suspected criminal or otherwise Unlawful offence to any relevant government, regulator, or law enforcement agency or from cooperating with any government, regulator, or law enforcement agency regarding a criminal investigation or prosecution;
- doing or saying anything that is required by a regulator, ombudsman, or supervisory authority;
- whether required or not, making a disclosure to, or cooperating with any investigation by a regulator, ombudsman, or supervisory authority regarding any misconduct, wrongdoing or serious breach of regulatory requirements (including giving evidence at a hearing);
- complying with an order from a court or tribunal to disclose or give evidence; or
- making any other disclosure as required by law.
The Client shall not disclose Arkus Advisory Confidential Information or the terms of any Engagement Letter to any third party except to the extent required by law or to the extent necessary to conduct its business in accordance with the Governing Documents.
14. Representations and Warranties
The Client represents and warrants that:
- to the best of the Client’s knowledge and belief, full disclosure has been made to Arkus Advisory prior to the date of any Engagement Letter of all facts relating to the Client’s business affairs;
- the Client is duly incorporated, established and/or registered, as applicable, and validly existing under the laws of the Client’s jurisdiction of formation and the Client is in good standing;
- the Client has the power and authority to enter into any Engagement Letter and perform all actions required by the Client under such Engagement Letter and these Terms of Business, and that all actions required to authorize the execution of such Engagement Letter and the performance of the Client’s obligations hereunder have been duly taken;
- any Engagement Letter (which includes these Terms of Business) is a valid and legally binding agreement enforceable against the Client in accordance with its and these terms;
- the Client is not engaged or about to be engaged in any litigation, arbitration, regulatory or disciplinary action and to the best of the Client’s knowledge and belief no such litigation, arbitration, regulatory or disciplinary action is pending or threatened against the Client;
- in the event of any such proceedings or actions referred to in Clause 14.1.5, above, being brought or threatened against the Client, the Client shall promptly supply Arkus Advisory with all relevant information and documentation in relation to such proceedings or actions;
- the Client and its Officers comply with all Laws, including Economic Sanctions Laws;
- the Client shall ensure that its AML Officers remain in place, as required, throughout the duration of the Engagement Letter, facilitate any reporting requirements of the AML Officers to CIMA or any other governing body, as applicable, and shall at all times keep the AML Officers fully updated as to the business of the Client;
- the Client shall provide any information as may be reasonably requested by any Appointee in a timely manner;
- the Client shall notify Arkus Advisory in writing immediately if any statement set forth in any Engagement Letter or in these Terms of Business relating to a representation and warranty by the Client ceases to be true; and
- the Client is entitled to give Arkus Advisory the information it dispatches to Arkus Advisory (including Personal Data) and Arkus Advisory is entitled to use such information in connection with the provision of Services to the Client (including information covered by the Data Protection Law).
15. Termination
Unless otherwise agreed pursuant to the terms of any Engagement Letter, and without prejudice to Clauses 15.2 to 15.8 hereof, any Engagement Letter may be terminated by the Client by giving Arkus Advisory not less than 30 days’ written notice to that effect provided always that such termination shall be without prejudice to:
- the due performance by the Client of all its obligations under any Engagement Letter up to the date of termination;
- the remedies of Arkus Advisory in respect of any breach of any Engagement Letter; or
- outstanding payment obligations as provided by Clause 15.4 hereof, the exclusion of liability and indemnification provisions set out in these Terms of Business and in any Engagement Letter as well as any other provision of these Terms of Business or such Engagement Letter intended to survive such termination (see, e.g., Clause 4.8).
Arkus Advisory may terminate any Engagement Letter by giving the Client:
- not less than 30 days’ written notice if the Client committed a breach of the Client’s obligations under any Engagement Letter or these Terms of Business, or breach of the terms of any Governing Document and where the Client has failed to remedy any such breach within the 30 days’ notice;
- not less than 10 days’ written notice if there has been a change of Interested Person or Beneficial Owner;
- not less than 5 days’ written notice if the Client is in material breach of any regulatory law applicable to the Client; or
- immediate written notice if the Client or the Client become insolvent, bankrupt, or enter into liquidation (except a voluntary liquidation for the purposes of reconstruction or amalgamation) or are struck off the relevant register.
Arkus Advisory may terminate any Engagement Letter by immediate notice if in its sole discretion it believes that:
- continuing to provide the Services would or might assist in the furtherance of criminal or Unlawful activity;
- continuing to provide the Services would or might constitute a breach of any applicable Law or otherwise be Unlawful;
- continuing to provide the Services does not fit within the risk strategy of Arkus Advisory;
- the Client or any Relevant Person are subject to any international financial sanctions, or are designated as a person with whom Arkus Advisory is prohibited from dealing;
- in continuing to provide the Services, it may suffer reputational damage or be prejudicial to the interests of Arkus Advisory;
- the Client has given Arkus Advisory false information; or
- the Client’s conduct or the conduct of the Client of whatsoever nature makes it inappropriate in any way to continue to provide the Services.
Arkus Advisory shall, upon termination of any Engagement Letter, settle the Client’s account and send its final invoice to the Client.
Arkus Advisory shall, upon the termination of any Engagement Letter and payment of all outstanding fees, expenses, disbursements and interest or any other sum due to Arkus Advisory, deliver, as the Client may direct, all documentation in its possession relating to its Services, which is the property of the Client, and Arkus Advisory may make and retain copies thereof, at its own expense.
The Client shall reimburse Arkus Advisory for any fees, charges, taxes, duties, imposts, and expenses not previously reimbursed, and the Client shall not wrongfully represent itself as continuing to receive the Services from, or otherwise represent itself as being connected with, Arkus Advisory.
Termination of any Engagement Letter shall not affect the rights of any Party accrued up to the date of termination including, for the avoidance of doubt, the Client’s payment of all outstanding fees, expenses, disbursements and interest or any other sum due to Arkus Advisory.
Termination of any Engagement Letter shall not affect the provisions of Clause 16, which together with all rights and remedies thereunder, shall survive the termination of such Engagement Letter, howsoever arising, in perpetuity.
The termination of any Engagement Letter, unless the terminating Party has otherwise notified the non-terminating Party, shall not automatically terminate any other Engagement Letter entered into between the Parties.
16. Limitation of Liability; Indemnification and Exculpation; No Duty to Others
Arkus Advisory shall be entitled to assume that the approval and authorization of the Client or an Authorized Person of any act, deed, document, matter or thing has been given if Arkus Advisory shall have been notified, whether in writing, verbally, by telephone, facsimile, email, telex or cable, by any representative of an Officer, and Arkus Advisory shall not be obliged to make further inquiry thereafter of the Client and shall be under no liability or obligation whatsoever to the Client for so assuming and relying, whether or not such approval or authorization has, in fact, been given.
The Client agrees to indemnify and hold harmless: (i) the Arkus Advisory Group; (ii) Arkus Advisory (for itself and on trust and as agent for the benefit of the other Indemnified Persons, defined below); (iii) the successors and assigns of the Arkus Group and Arkus; and (iv) any Affiliates, any Appointee, Beneficial Owners, Directors, Representatives, delegates, managers, members, partners, officers, employees, or liquidators of any Persons identified in the foregoing (i) to (iii), present and future, (collectively, the Indemnified Persons) and each of them, as the case may be, on demand, against any liability, obligation, loss, action, proceeding, claim, demand, judgment, cost, fine, penalty, damage, disbursement, or expense of any kind (including legal fees, expenses, and time spent on negotiations of a dispute which shall be charged by Arkus on a time spent basis at the Hourly Rate), and interest, whatsoever, which they or any of them may incur or be subject to in consequence of any Engagement Letter or as a direct result of the performance of or non-performance, including, but not limited to, the negligent performance or non-performance, of the functions, duties, and Services or any other act or omission or matter in connection with, or in any way relating to, the Services or such Engagement Letter, or the subject matter of such Engagement Letter except as a result of the wilful default or actual fraud of Arkus Advisory or an Indemnified Person, and this indemnity shall expressly inure to the benefit of any such Indemnified Person, existing or future.
If and to the extent any provision of the indemnity and hold harmless Clause in Clause 16.2 exceeds the indemnity provided by relevant Law, such Clause shall be deemed revised to constitute the maximum permitted indemnity under the relevant Law.
Any Indemnified Person not being a Party to any Engagement Letter may enforce any rights granted to it pursuant to these Terms of Business and such Engagement Letter in its own right as if it were a Party to such Engagement Letter.
Arkus Advisory and the Indemnified Persons shall not be liable to the Client except in the case of Arkus Advisory’s or an Indemnified Person’s wilful default or actual fraud. In no event shall the liability of Arkus Advisory to a Client, excluding an event of actual fraud by Arkus Advisory or an Indemnified Person, exceed two times the amount of average annual fees received by Arkus Advisory in respect of the provision of the Services to such Client. In no event shall Arkus Advisory or the Indemnified Persons be liable for any indirect, consequential, incidental, or reputational damage, including, but not limited to, business interruption, lost business, lost profits, or lost savings, even if Arkus Advisory has been advised of their possible existence.
Arkus Advisory shall not be liable for any action taken, any delay or any failure to take any action required to be taken under an Engagement Letter or otherwise to fulfil its obligations thereunder (including any loss, delay or mis-delivery or error in transmission of communications or financial information) in the event and to the extent that the taking of such action, such delay or such failure arises out of or is caused by or directly or indirectly due to any force majeure event, including war, act of terrorism, insurrection, riot, labor disputes, civil commotion, act of God, fire, water damage, explosion, any law, decree, regulation or order of any government or governmental body (including any court of tribunal), or any other cause (whether similar or dissimilar to any of the foregoing) whatsoever beyond its reasonable control. In any such event, Arkus Advisory shall be excused from any further performance of the obligations so affected only for so long as such circumstances prevail, and Arkus Advisory continues to use commercially reasonable efforts to recommence performance as soon as practicable.
Without prejudice to Clause 16.1, the Indemnified Persons shall not be liable for:
- any damages, loss, penalties, liabilities, actions, proceedings, claims, demands, costs or expenses or disbursements (including, but not limited to, legal fees and expenses) or interest, of whatsoever nature, as a result of any failure by the Client or by any Relevant Person to give any instructions, authorizations, approvals, information and/or documents to Arkus Advisory or any Appointee in a timely manner to allow Arkus Advisory and any Appointee to fulfil their obligations pursuant to an Engagement Letter;
- any damages, loss, penalties, liabilities, actions, proceedings, claims, demands, costs or expenses or disbursements (including, but not limited to, legal fees and expenses) or interest, of whatsoever nature, and however caused, suffered or incurred by the Client, or by any Relevant Person, at any time from any cause arising out of or in any way related to any Engagement Letter or in any way related to the performance or nonperformance of the Services or any other act or omission or matter in connection with, or in any way relating to, the Services or any Engagement Letter or the subject matter of any Engagement Letter or in reliance on any information provided by, or in response to any request from, the Client or any Relevant Person, unless caused by the wilful default or actual fraud of Arkus Advisory or that of any Indemnified Person;
- any act of a broker, banker, custodian, subcontractor (even if Arkus Advisory facilitated the contact between the Client and the subcontractor), or dealer; or
- any error of judgment or mistake of law or for any loss or expense suffered by the Client in connection with the matters to which any Engagement Letter relates, except for a loss or expense directly caused by or resulting from actual fraud or wilful default on Arkus Advisory’s or an Indemnified Person’s part in the performance of any Engagement Letter. Arkus Advisory shall not be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) under any provision of these Terms of Business and any Engagement Letter.
The Client shall indemnify and hold harmless the Indemnified Persons, to the fullest extent permitted by the Law, on a full indemnity basis, for all losses, costs, and expenses (including, without limitation, any award of damages) arising from or associated with:
- all actions, suits, proceedings, claims, demands (including for assistance and information) which may be made against the Indemnified Persons (whether the same is made by the Client or by another person or persons);
- the Indemnified Persons’ participation or involvement in any investigation;
- the Indemnified Persons’ participation or involvement in any legal proceedings of any nature, including without limitation, as a witness at a trial, or through participation in a deposition or like procedure, whether or not the defendant is a party to that proceeding, in all cases in connection with or as a result of Arkus Advisory providing the Services to the Client, or otherwise in connection with the performance of any Engagement Letter, or any regulatory action relating to or involving the Client or any service provider thereto including Arkus Advisory, and/or any acts or omissions of the Client or any service provider thereto, other than as caused by the actual fraud or wilful default of Arkus Advisory or an Indemnified Person; and
- any and all breaches of the Client’s obligations under these Terms of Business and any Engagement Letter.
The Client shall advance any costs and expenses incurred by the Indemnified Persons (including attorney’s fees) in defending any claim, demand action, suit, proceeding, or for participating in any investigation, or for participating in any proceedings, for which indemnity has been or could be sought. The Indemnified Persons shall reimburse the Client for any such advances in the event that a final non appealable judgment is given against the Indemnified Persons which finds such losses, costs and/or expenses to have been incurred by reason of their actual fraud or wilful default.
Arkus Advisory shall not be liable for any losses arising out of any acts or omissions of any third party which occurred or were alleged to have occurred from or about the Effective Date, including with respect to Client funds retained by Arkus Advisory as a result of any such act or omission by a third party in an event of such third party being unable to pay its debts as these fall due or any other event.
The Client shall indemnify Arkus Advisory and shall advance any costs and expenses incurred by Arkus Advisory in bringing any actions against the Client, including proceedings to recover unpaid fees pursuant to the Fee Schedule.
The limitations of liability and indemnification provided by these Terms of Business, or any Engagement Letter shall not be deemed to be exclusive of any other such rights to which those seeking such limitation or indemnification may be entitled.
Arkus Advisory shall not in any event be liable for: (i) any consequential, indirect, special, incidental, punitive or exemplary loss; or (ii) any economic loss (including, but not limited to, loss of revenues, profits, contracts, business or anticipated savings), arising out of any breach or in connection with these Terms of Business or any Engagement Letter or the provision or non-provision of Services, or otherwise, in each case whether or not Arkus Advisory has been advised of the possibility of the occurrence of such loss or damage, and howsoever incurred. For the avoidance of doubt Arkus Advisory shall not in any event be liable for any loss of goodwill or reputation.
No recourse shall be had against any shareholders, directors, officers, employees, agents, partners, existing or future, their successors and assigns and their respective directors, officers, employees, agents, and partners of Arkus Advisory.
For the avoidance of doubt, the obligations of Arkus Advisory under any Engagement Letter, these Terms of Business or otherwise, are owed only to the Client and to no other person. Without prejudice to the generality of the foregoing, Arkus Advisory undertakes and owes no duty of any nature whether fiduciary, in contract, tort, trust or otherwise, in relation to any Engagement Letter or the Services, to any Relevant Person or any other person, save as may be required by Law, or by any such Engagement Letter.
All the terms of this Clause 16, including the benefit of the indemnity and waiver, shall expressly inure for the benefit of Arkus Advisory’s shareholders, directors, officers, employees, agents, members, managers, partners, existing or future, their and its successors and assigns and their respective directors, officers, members, managers, employees, agents and partners, and those provided by Arkus Advisory for or in connection with the provision of any Service, all of whom may enforce the terms of this Clause 16 in their own right in accordance with the Third Parties Law.
17. Non-Exclusivity; No Joint Venture or Other Relationship
Arkus Advisory shall not, by virtue of any Engagement Letter, be prevented or restricted from providing the Services to or carrying on any other business with any other person.
Nothing in any Engagement Letter shall be deemed to constitute a partnership between the Parties nor constitute any Party or the agent of the other Party for any purpose other than as expressly provided for, and neither Arkus Advisory nor any person affiliated with it shall, by virtue of any Engagement Letter, be liable to account to the Client for any profit which may accrue to it or them from, or by virtue of, any transaction entered into between the Client and Arkus Advisory or its Affiliates.
The Client acknowledges and accepts that the Services are not exclusive and that each of Arkus Advisory and any Appointee may provide services to any other Person, without notice to the Client and without the Client’s consent or notice to, or the consent of, the Client and it may provide any individuals providing the Services under any Engagement Letter to any other clients of Arkus Advisory for the provision of services to that client regardless of any conflict of interest that may arise.
Nothing contained in any Engagement Letter or these Terms of Business shall constitute a joint venture, partnership, or any similar relationship between the Client, or any Relevant Person and Arkus Advisory nor shall any employee, officer, director or agent of Arkus Advisory be deemed to be an employee of the Client or entitled to any remuneration or other benefits from the Client.
18. Assignment and Delegation
Any Engagement Letter shall not be capable of being assigned by either Party without the prior written consent of the other Party, provided that Arkus Advisory shall be entitled, without consent of or notice to the Client, to assign its rights and obligations and the benefit of any such Engagement Letter subject always to the burden thereof, or to sub contract the provision of any of the Services, in either case, to any other person with which it is affiliated and in connection therewith may require the Client to enter into such form of deed of assignment and novation as Arkus Advisory may reasonably specify.
Subject to the Law and in accordance with the Governing Documents, Arkus Advisory, any Appointee, and the Directors shall be entitled to delegate the whole or any part or parts of their functions, powers, discretions, duties and obligations hereunder to any person, firm or corporation, and any such delegation may be on such terms and conditions as Arkus Advisory, any Appointee, and/or the Director deems fit. None of Arkus Advisory, any Appointee, nor the Directors shall incur any liability whatsoever arising from the negligence, wilful default or fraud of any delegate or agent appointed or employed by Arkus Advisory. Without prejudice to the generality of the foregoing, Arkus Advisory, any Appointee, and/or Directors may delegate their powers and duties to any person on such terms as they reasonably determine.
19. Notices
Any notices, correspondence or communications to be delivered or forwarded by Arkus Advisory shall be sent by Electronic transmission or courier and shall be deemed to be given in the case of Electronic transmission at 10.00 a.m. on the next Working Day in the place of receipt following dispatch or in the case of postal delivery, fourteen (14) Working Days after the dispatch thereof and shall be sent:
- in the case of Arkus Advisory, to the registered office address of Arkus Advisory or such Electronic address as provided by Arkus Advisory to the Client;
- in the case of the Client, to such correspondence address or Electronic address as provided by the Client to Arkus Advisory;
- to any correspondence address or Electronic address or for the attention of any other Person as may from time to time be notified by one Party to the other Party by notice given in accordance with the provisions of these Terms of Business; and
- in the absence of any address specified or notified pursuant to Clauses 19.1.2 and 19.1.3 above, to such other address as Arkus Advisory in its sole discretion considers appropriate.
20. Data Protection and Processing
Any processing of Personal Data will be in accordance with the applicable Data Protection Law. Unless otherwise communicated to you by Arkus Advisory, Arkus Advisory shall act as a “data controller”. Please refer to the Privacy Policy for further information on how Arkus Advisory collects Personal Data, how it is used, what rights and choices the Client has in relation to the Personal Data held and processed and how the Client or data subjects whose Personal Data may be held by Arkus Advisory can contact Arkus Advisory. Any Personal Data received by Arkus Advisory will only be used for the purposes set forth in any Engagement Letter or otherwise agreed with you.
The Client warrants and represents to have any necessary consents, provided necessary notice, and done all things required under applicable Data Protection Law to disclose Personal Data to Arkus Advisory in connection with the Services. The Client agrees to inform Arkus Advisory in writing if it provides Arkus Advisory with “special category data.”
Arkus Advisory shall take appropriate technical and organizational steps to protect against unauthorized or unlawful processing of Personal Data and accidental loss or destruction of, or damage to, Personal Data. Arkus Advisory’s information security systems comply with all relevant requirements regarding the processing of Personal Data. Satisfactory documentation regarding information security and safety audits will be provided upon the Client’s request.
In providing Services and otherwise fulfilling its obligations under these Terms of Business, Arkus Advisory may be required to process information which is Personal Data. In connection therewith, the Client acknowledges and agrees that:
- the Client has received, read, and understands the contents of the Privacy Policy;
- the Client has shared the Privacy Policy with all relevant individuals before their disclosure of Personal Data to Arkus Advisory;
- to the extent Arkus Advisory acts as a “data controller” in respect of the Personal Data, Arkus Advisory may process the Personal Data in accordance with applicable Data Protection Law and the Privacy Policy; and
- to the extent Arkus Advisory acts as a “data processor” in respect of the Personal Data, Arkus Advisory will enter into a data processing agreement with the Client in connection with the processing of Personal Data undertaken by Arkus Advisory.
Arkus Advisory shall process Personal Data: (i) to provide the Services; (ii) for Arkus Advisory’s reasonable business purposes including facilitation of and support of Arkus Advisory’s business and quality control; and (iii) to meet Arkus Advisory’s legal and regulatory obligations. Arkus Advisory may share Personal Data with vendors and other parties, which may be in another country, in connection with such purposes and Arkus Advisory may rely on assistance from data processors, including software providers, webhosting, backup, security, and storage providers. When Arkus Advisory involves data processors, Arkus Advisory will enter into a data processing agreement ensuring that the Client’s data is processed in accordance with the relevant Data Protection Law and the Privacy Policy. Arkus Advisory may also disclose Personal Data to other third parties where (a) you have consented to such disclosure, (b) such Personal Data is already in the public domain (otherwise than as a result of unauthorized or improper conduct of the recipient), (c) where we are 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 governmental, regulatory or supervisory body, and/or (d) where such disclosure is permitted by these Terms of Business and/or outlined in the Privacy Policy.
Where any transfer of Personal Data is to any person in another country, such transfer is on the basis that anyone to whom we pass it provides an adequate level of protection. However, note that (a) that other country may not provide the same level or type of statutory (other legal) protection as your country; and (b) in some circumstances, your Personal Data may be accessed by law enforcement agencies and other authorities to prevent and detect crime and comply with legal obligations.
Subject to applicable laws and regulations, Arkus Advisory shall notify the Client promptly: (i) upon receiving a request for Personal Data or other request from a data subject, or if Arkus Advisory receives any claim, complaint, or allegation relating to its processing of Personal Data; (ii) upon becoming aware of any breach of security leading to the destruction, loss, or unlawful disclosure of Personal Data in Arkus Advisory’s possession or control.
21. Retention of Advisors
In the event that Arkus Advisory or any Appointee, in furtherance of its duty to the Client, requires professional advice with respect to the Client’s affairs, Arkus Advisory and any Appointee may consult the Client’s legal, tax and other professional advisers at the Client’s expense. If Arkus Advisory or any Appointee needs to consult professional advisers other than the Client’s, as determined by Arkus Advisory or any Appointee in its reasonable discretion, Arkus Advisory or any Appointee, as applicable, may consult an independent adviser at the Client’s expense.
22. Confidentiality
No Party shall, at any time, disclose to any other person and shall treat as confidential, any Confidential Information relating to the business, finances or other matters of any other Party, which such Party has obtained as a result of its relationship with the other Party under these Terms of Business and any Engagement Letter, save where the Confidential Information is or was:
- already known to the recipient from a source other than the other Party without any obligation of confidentiality;
- in the public domain or becomes public knowledge otherwise than as a result of the unauthorized or improper conduct of the disclosing party;
- required to be disclosed by any Law or order of any court or due to any instruction, request or requirement (whether or not having the force of Law) of any central bank, governmental, supervisory or other regulatory agency or taxation authority (provided that, if legally permissible, the recipient will promptly inform the other Party of any such order, instruction, request or requirement) and also of any intended disclosure;
- disclosed for business purposes to Affiliates, professional advisors, service providers or agents engaged by a Party, who received the information under a duty of confidentiality;
- made available by a third party who is or was entitled to divulge such information and who is not under any obligation of confidentiality in respect of such information to another Party;
- disclosed with the consent of another Party (including any consents contained under these Terms of Business or any Engagement Letter); or
- is disclosed in accordance with any other terms of these Terms of Business (e.g., Clauses 13.7, 13.8).
The Parties shall ensure that any Confidential Information provided to another Party in relation to Representatives of the disclosing Party is provided with the consent of the relevant Representatives, which the disclosing Party shall obtain.
23. Legal Action
Unless provided otherwise by any Engagement Letter or otherwise agreed in writing, Arkus Advisory shall not be required to take any legal or similar action on the Client’s behalf. Arkus Advisory may, in its sole discretion, take any such action provided that it and its directors, officers, employees, Affiliates, and agents are fully indemnified against all liability, and remunerated for all work done and time spent, and reimbursed for all costs and expenses incurred, and on such other terms as may be required by Arkus Advisory.
24. Governing Law and Jurisdiction
The Terms of Business, any Engagement Letter, and any dispute arising out of or in connection with them, their subject matter, their formation (including non-contractual disputes or claims), and the Services, shall be governed by and construed in accordance with the laws of the Cayman Islands, without regard to any conflict of laws principles thereof that would call for the application of the laws of any other jurisdiction.
Each Party irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Terms of Business, any Engagement Letter, and any dispute arising out of or in connection with them, their subject matter, their formation (including non-contractual disputes or claims), and the Services.
25. Non-Solicitation
The Client shall not at any time for a period of 12 months from the termination date of its Engagement Letter with Arkus Advisory, on its own behalf or on behalf of a competing business of Arkus Advisory:
- entice or solicit, or endeavor to entice or solicit, any employees or clients from Arkus Advisory; or
- entice or solicit, or endeavor to entice or solicit, any prospective employees or prospective clients from Arkus Advisory.
The Client acknowledges and agrees that each of Clauses 25.1.1 and 25.1.2 above constitute an entirely separate and independent restriction on the Client and that the duration, extent and application of each of such restrictions are no greater than is necessary for the protection of the legitimate interests of Arkus Advisory. The Client agrees that if any of such restrictions will be adjudged to be void or ineffective as going beyond what is reasonable in all circumstances for the protection of the interests of Arkus Advisory or for any other reason, but would be valid and effective if part of the wording of it was deleted and/or any period or area referred to in it reduced in time or scope, such restrictions will apply with such deletions or modifications to the lease extent necessary as may be necessary to make them valid and effective.