DEFINITIONS AND INTERPRETATION
In these Terms and Conditions of business:
“Client” means the person who requested Form-A-Co to provide services or any other person who has agreed to pay for services, or has previously remitted payment for those services.
“Company” means any one or more companies for which the client has requested Form-A-Co to provide services.
“Form-A-Co” references within these Terms and Conditions means Form-A-Co (Gibraltar) Limited of Suite 4, 2nd Floor, The West Wing, Montarik House, 3 Bedlam Court, Gibraltar, GX11 1AA
“Agent” refers to a Person or business that is authorised to act or transact on behalf of Form-A-Co to perform a Service for the Client or Company.
“Person” shall include, as far as the context admits, any person, firm, company or other body incorporated or unincorporated.
“Services” means the incorporation of any company, provision of directors and/or shareholders, administration, or any other services of whatever nature provided to the Client, Company or other related entity.
“Illegal activities” means all illegal activities including those activities defined by the Gibraltar Anti Money Laundering Legislation which, without prejudice to the generality of the foregoing, include activities related to terrorism; drug trafficking; money laundering; receiving the proceeds of criminal activities or trading with such countries as might from time to time be subject to any embargo imposed by the Security Council of the United Nations, the European Union, the United Kingdom or Gibraltar.
“Prohibited activities” means activities currently not approved by Form-A-Co which are activities involving arms, weapons or munitions; mercenary or contract soldiering; security and riot control equipment; any device that could lead to the abuse of human rights or be utilised for torture; technical surveillance or bugging equipment; industrial espionage; dangerous or hazardous biological, chemical or nuclear materials including equipment or machinery to manufacture or handle such materials and their transportation, handling disposal or dumping of such materials; human or animal organs; the abuse of animals, genetic material; adoption agencies including surrogate motherhood; the abuse of refugees or human rights; pornography; drug paraphernalia; pyramid sales, religious cults and their charities, also including, unless otherwise agreed in writing, any activity relating to the provision of financial services which requires a licence in any jurisdiction, lastly, any activity whatsoever that may damage the good reputation of Form-A-Co, its associated companies, Gibraltar or the country of incorporation of the Company.
“Prohibited persons” means persons prohibited under the laws of any country by reason of being a minor or having no legal capacity (for whatever reason) or otherwise unqualified to be party to a contract or who are undischarged bankrupts or are otherwise disqualified from acting as a director or who have been imprisoned or found guilty of any criminal offence (other than a motoring offence carrying a non-custodial sentence) including those persons who have been proven to act in a fraudulent or dishonest manner in any civil proceedings or who are resident in any country subject to any international restriction embargo including, but without prejudice to the generality of the foregoing those imposed by the Security Council of the United Nations, the European Union, the United Kingdom or Gibraltar or those who are, by virtue of relevant laws, Acts, Directives or Statutory Instruments prohibited from engaging the services of Form-A-Co.
- REQUESTS AND SERVICES
In the provision of any of the services requested by the Client, Form-A-Co shall follow the requests at its own discretion, whether given by word of mouth, letter, email, telephone, fax or otherwise of the Client or any one of the Clients where there is more than one. Provided that:
1.1 Where there is more than one Client, if Form-A-Co is requested by any one of those Clients Form-A-Co will not consider the requests unless sanctioned by all Clients.
1.2 Form-A-Co will not be obliged to perform any services which might (in the opinion of Form-A-Co) contravene the law of any jurisdiction or which might contravene or be beyond the powers of the Company as set out in its Memorandum & Articles of Association or other form of Constitution, or be illegal or prohibited activities or be contrary to the policies of Form-A-Co.
1.3 Form-A-Co shall not be liable for any failure or delay to carry out the requests herein provided for, or any errors in carrying out such requests other than in the case of fraud or gross negligence on the part of Form-A-Co.
1.4 Form-A-Co reserves the right not to follow requests which appear to be conflicting, ambiguous, unclear or of unclear authenticity. If for any reason Form-A-Co is unable to obtain sufficient and satisfactory requests it may exercise any rights, satisfy any such liabilities, and retain or dispose of monies collected and generally act or not act as its Board may think fit. The indemnity hereinafter granted by the Client to Form-A-Co shall extend to and cover all acts and omissions incurred by Form-A-Co.
1.5 The information contained in brochures and other marketing material does not constitute tax or other legal or general advice and it is hereby accepted by the Client that no such reliance has been placed upon such material supplied to the Client directly or indirectly.
1.6 Upon request the Client agrees to provide Form-A-Co with whatever information Form-A-Co may reasonably require about the background of the Client and/or their or her dealings and business.
1.7 In order that Form-A-Co may at all times be able to contact the Client, the Client hereby agrees to inform Form-A-Co immediately upon changing their usual business, residential address, or telephone, facsimile numbers and e-mail address.
- CLIENT UNDERTAKING
The Client hereby undertakes that: –
2.1 they will not give any instructions or make any requests to Form-A-Co which would cause Form-A-Co, or the Company, to infringe the laws of any territory;
2.2 they are responsible for providing Form-A-Co with such complete accurate and timely information, co-operation, assistance as Form-A-Co in its absolute discretion may reasonably require for the performance of the Services. Form-A-Co will not be responsible for any consequences that may arise from any failure or delay by the Client to comply with this requirement and the consequences may give rise to additional fees for which invoices may be raised. The Client will remain responsible for any commercial decisions they may make;
2.3 they will not cause Form-A-Co to be engaged or involved directly or indirectly in any unlawful, Illegal or Prohibited activity, or allow Form-A-Co to be used for any unlawful purpose;
2.4 they shall at all times comply with the provisions governing Bribery Offences as contained under Part 24 of the Crimes Act 2011 (Gibraltar law).
2.5 the indemnity contained in each of the above four sub clauses shall: –
2.5.1 be in addition to and shall not in any way limit the benefit of any indemnity or other rights whatsoever to which Form-A-Co may be entitled whether under the Constitution of the Company or otherwise by law;
2.5.2 be a continuing indemnity and shall not cease upon the termination of this Agreement or the resignation or removal of Form-A-Co from office.
- AGENTS & CONSULTANTS
3.1 Form-A-Co will be entitled to employ lawyers, accountants, brokers, banks and other Agents as may be reasonably necessary to assist it in carrying out its duties and/or the business of the Company. Such Agents may act and transact business for which the Agent has been appointed, on behalf of Form-A-Co and in accordance with the Agent’s standard terms and conditions.
3.2 Form-A-Co accepts no liability whatsoever arising from or in connection with; the appointment, service, performance or lack thereof and actions of any such lawyers, accountants, brokers, banks and other Agents.
- NOTICE
Any notice required or authorised to be served pursuant to this Agreement may be served by sending the same by post to the last known address of the party to whom the same is addressed or, in the case of a company, to the registered office of such company.
- LIMITATION OF LIABILITY
6.1 Form-A-Co will not be liable (whether in contract, tort or otherwise, including breach of statutory duty) in connection with this Agreement for any loss of profit, production, anticipated savings, goodwill or business opportunities or any type of indirect, economic or consequential loss even if that loss was reasonably foreseeable or that Form-A-Co was aware of the possibility of that loss or damage arising.
6.2 Form-A-Co will not incur any liability: –
6.2.1 for any failure or delay on its part to comply wholly or partly with any instruction, request or advice which is not received or is incomplete, illegible or ambiguous or (in the opinion of Form-A-Co) for any lack of authority on the part of the person giving or making the same.
6.2.2 for the acts or omissions of any person or entity who or which is appointed, designated or empowered as director, officer, employee, agent, individual, trustee, manager, signatory or shareholder or holder of any general or special power of attorney with respect to the Company or other entity associated with the Company.
Except to the extent that such liability arose as a result of the gross negligence of Form-A-Co.
- ENTIRE AGREEMENT
These Terms and Conditions together with the Application Form and the Agreement shall constitute the entire agreement between the Client and Form-A-Co. All warranties, undertakings, terms and conditions, whether expressed or implied, statutory or otherwise, and all representations, (except for fraudulent misrepresentations which are relied upon), statements, negotiations, and understandings, whether written or oral, are expressly excluded and superseded except as stated in the entire Agreement, not permitted by law or unless they are specifically agreed after the date of the entire Agreement in writing by a duly authorised representative of each party. Each party agrees that it has not relied upon any such representations described above.
- JOINT CLIENTS
Where two or more persons constitute the Client, each such person or entity appoints the other such person or entity to be their agent to exercise full power in respect of them, and each such person or entity agrees that their obligation is joint and several.
- WAIVER
No failure, delay or indulgence on the part of either party in exercising any power or right under the entire Agreement shall operate as a waiver of such power or right, except as agreed in writing.
- SEVERABILITY
If any provision of the entire Agreement is held by a court of competent jurisdiction to be invalid or voidable the remainder of the entire Agreement shall remain in full force and effect.
- VARIATIONS
No variation of the entire Agreement shall be valid unless agreed in writing.
- THIRD PARTY RIGHTS
No term or condition of the entire Agreement is intended, expressly or impliedly by inference, to confer a benefit or right of action upon any third party.
- ASSIGNMENT
Neither party may assign the entire Agreement or any of its rights or obligations under the entire Agreement without the prior written consent of the other party. Form-A-Co reserves the right to subcontract all or any part of its obligations under the entire Agreement as stated above.
- PARTNERSHIP
Nothing in the entire Agreement is intended to create a legal partnership between Form-A-Co and the Client.
- COMPETENT JURISDICTION
The entire Agreement shall be governed by and construed in accordance with the laws of Gibraltar and the parties hereto irrevocably submit to the jurisdiction of the Courts of Gibraltar and irrevocably consents to the service of process out of such Courts by mailing copies thereof by registered mail, postage prepaid to his/her address.
- INDEMNITY
17.1 The Client indemnifies Form-A-Co for any services provided and agrees to hold harmless and will keep indemnified, Form-A-Co and its successors, and assigns from all actions, suits, proceedings, claims, demands, liabilities, costs and expenses whatsoever taken or made against Form-A-Co.
17.2 The terms of the indemnity contained in Clause 17.1 above shall extend to all directors, officers, associated agents and staff from time to time of Form-A-Co and its affiliated firms or companies wherever situated who may perform any of the functions herein contemplated and notwithstanding that there may be some defect in their appointment, qualifications or authority. This Indemnity is intended to endure for the benefit of Form-A-Co and of every officer, employee and agent and/or personal representative thereof so as to be enforceable by each of them against the Client.
17.3 This indemnity and every agreement contained herein is without prejudice to any other indemnity in favour of Form-A-Co and, or its successors, officers, employees and agents and of the personal representatives thereof. The termination of this Agreement or the employment or appointment of any officer, employee, or agent as contemplated in section B, as the case may be, shall not relieve the client of their obligations to indemnify Form-A-Co.
- ACTIONS OR PROCEEDINGS
If the client or Form-A-Co receives notification of any claim, demand or the commencement of any action, suit, or proceeding, they shall notify the other party in writing immediately. Form-A-Co shall have the right to participate in and defend any such claim or action with counsel selected by Form-A-Co. Any such action, suit, proceeding, claim or demand may be settled by Form-A-Co in consultation with the client at the discretion of Form-A-Co.
- CLIENT MONIES
Where any monies are held in Form-A-Co’s Client Account for an intermediary period, no interest will be paid unless otherwise agreed.
- TAX / LEGAL ADVICE
Applicants for Business and Clients are reminded of their legal obligation to declare their interests in entities and structures to the revenue authorities in their country of residence in accordance with relevant Controlled Foreign Companies (CFC) and/or other legislation or regulation. Form-A-Co, Form-A-Trust (Gibraltar) Limited and their directors and staff, accept no responsibility whatsoever in respect of an Applicant for Business or Client’s obligations in this regard.
- COMPLAINTS
In the unlikely event of a dispute between the Client and Form-A-Co the nature of the complaint and suggested solution should be set out in writing, (in English), and posted by registered mail, or fax to a member of the Board. Form-A-Co will endeavour to settle the dispute giving due recognition to the terms and conditions of this agreement and relevant laws persuasive or otherwise. Should the dispute remain unresolved the Client remains free to contact Form-A-Co’s regulatory body, the Gibraltar Financial Services Commission at P.O.Box 940, Suite 3, Ground Floor, Atlantic Suites, Europort Avenue, Gibraltar. Telephone: +350 200 40284 Fax: +350 200 40282 Email: info@fsc.gi
- TERMINATION
22.1 The entire Agreement may be terminated by Form-A-Co giving the Client thirty days’ notice of termination.
22.2 In the event of termination, Form-A-Co shall not be obliged to return all or any part of the fees and expenses paid to it, (save for amounts paid on account for disbursements to be incurred).