These Terms of Business shall apply to all Services provided by Azienda Financial Services Sarl to the Customers.
Confidential Information – means any information, not publicly available, held by Azienda relating to the Managed Entity or the Principal.
Corporate Records mean the records belonging to the Managed Entity and shall include all such records or documents which the Managed Entity shall be legally required to hold at its registered office. For the avoidance of doubt, all other records or documentation (including, but not limited to, electronic mail and all Confidential Information received or prepared by Azienda in connection with the performance of the Services) shall be the exclusive property of Azienda and will not be deemed to form part of the Managed Entity’s Corporate Records.
Azienda means Azienda Financial Services Sarl.
Azienda Employees means the employees, directors and officers of Azienda, whether directly or indirectly employed on a full time, part time, permanent, contract or temporary basis.
Luxembourg Banking and Professional Secrecy Laws mean any and all laws relating to the transmission or storage of Principal or Managed Entity data outside of the Grand Duchy of Luxembourg.
Managed Entity means the company, trust, foundation, partnership or other entity incorporated or unincorporated for which the Services are provided.
Principal means the person or persons at whose request Azienda is providing the Services and which shall include in the case of a company, trust, foundation, partnership or other entity incorporated or unincorporated, its beneficial owners and or instigators or if an individual the heirs and personal representatives thereof and if more than one individual shall include the survivor or survivors of them and the heirs, personal representatives and assigns of each of them and, in the case of a company or other body corporate shall include its successors.
Regulations mean all laws, regulations, rules, codes of practice and policies applicable to the Services provided by Azienda in each Relevant Jurisdiction.
Relevant Jurisdiction means the Grand Duchy of Luxembourg.
Services means the fiduciary, administration, accounting and ancillary services provided by Azienda as detailed in the Principal Terms of Engagement and any additional Services carried out as agreed in writing with the Principal.
Terms of Business means the Terms of Business of Azienda from time to time in force.
Terms of Engagement means the written agreement in place between Azienda and the Principal and or Managed Entity detailing the Services to be provided.
2. Confidentiality & Professional Secrecy
Azienda has procedures in place to ensure that all Confidential Information held directly by Azienda or on behalf of the Managed Entity or provided to Azienda by or in respect of the Principal and or Managed Entity is treated as confidential and that it will not be released or disclosed to any third party without the permission of the Principal except where disclosure is required:
- by law – for the avoidance of doubt Azienda, as a financial institution, may from time to time be required by law (including but not limited to the US Foreign Account Tax Compliance Act) to report information on the Managed Entity and/or the Principal to the Luxembourg tax authorities as the case may be for forwarding to the tax authorities of other jurisdictions pursuant to the terms of intergovernmental agreements;
- by the terms of any order or other direction of a court of competent jurisdiction;
- by any regulatory body having jurisdiction over Azienda and or the Managed Entity;
- in Azienda’s discretion to be made in connection with the proper carrying on of Azienda’s business to its professional advisers;
- by any third party engaged or proposed to be engaged to provide Services to Azienda or Managed Entity in connection with the provision of such Services or in order to comply with the third party’s regulatory and compliance requirements.
3. Provision of Services
In providing the Services Azienda does not hold itself out as giving advice on the laws or regulations of any jurisdiction and, in particular, Azienda does not provide advice on matters relating to taxation in any jurisdiction.
4. Due Diligence
Azienda is required to operate anti-money laundering Principal Due Diligence (CDD) measures and other checks in respect of the provision of the Services both before business take on and throughout the provision of Services. Azienda shall have the right to apply such checks and CDD measures (including confirmation of the source of wealth, source of funds, identity and address and verification of capacity to give instructions) in respect of all aspects of the provision of the Services including enhanced CDD measures where appropriate.
If the Principal or their agents fail to provide, when requested, any CDD information and documentation in the form prescribed by Azienda, Azienda shall be entitled to terminate or suspend the Services and will not be obliged to complete any transaction for the Principal or Managed Entity and Azienda shall have no liability for any losses arising directly or indirectly as a result of such termination, delay or suspension.
In the event of Azienda giving any notice to the Principal in connection with the Services, Azienda shall do so by letter, fax, e-mail or telephone at the registered address or number notified to Azienda, with a copy by email.
Azienda does not encrypt messages and cannot guarantee the security of any transmission by electronic means. If the Principal does not wish Azienda to communicate by any particular method then the Principal must instruct Azienda accordingly.
Azienda shall be entitled to remuneration for the provision of the Services in accordance with the scale of charges in force and reviewed from time to time or as specifically agreed with the Principal in addition to the reimbursement of proper expenses (at the express condition that they are agreed in writing and in advance by the Managed Entity). Azienda reserves the right to deduct such fees and expenses from funds and other assets and to realise any of the assets of the Managed Entity held by Azienda for the Principal or the Managed Entity at such times as Azienda shall think fit.
Unless otherwise agreed, invoices for such fees shall be issued on a monthly basis in arrears.
All fees, expenses, disbursements an taxes where applicable shall be due for settlement in such currency as agreed between the Principal and Azienda, within 14 days of the billing date. Interest at the rate of 1% per month may be added at Azienda’s discretion to all fees and expenses which remain outstanding for more than 30 days.
Where any fees remain outstanding for more than 90 days Azienda reserves the right to cease providing the Services until all outstanding fees and interest have been settled and if requested by Azienda an amount has also been received on account of future fees. By ceasing to provide any Services any correspondence addressed to the Managed Entity will remain unanswered and any action required to be undertaken on behalf of the Principal or the Managed Entity will not be carried out.
All fees charged to the Principal in advance shall be non-refundable in the event of the termination of the Services.
It is understood that payment by the Principal to Azienda of any fee invoice that shall include an amount payable to a third party (including, but without limiting the generality hereof, any government fees) shall first be applied towards payment of Azienda’s fees and any balance thereafter (if any), shall be applied to the third party fees, and Azienda shall not be responsible for any deficiency or otherwise in respect of the payment of the third party fees which remain outstanding.
7. Commission and Retrocession
Azienda does not seek to obtain commissions or retrocession in connection with the provision of the Services. In the event of any such commissions or retrocessions being received, Azienda will pay this in full to the Principal or the Managed Entity as appropriate.
8. The company’s liability
Azienda shall use its reasonable endeavours and exercise due care in carrying out the Services but shall not be liable for any loss or damage arising out of the performance of the Services unless Azienda shall have been guilty of fraud, wilful misconduct or gross negligence. Azienda shall maintain at all-time PI insurance cover.
The Customer undertakes at all times to hold Azienda harmless and to indemnify Azienda to the extent permitted by law against all actions, suits, proceedings, claims, demands, costs, expenses and liabilities whatsoever which may arise or accrue or be taken, commenced, made or sought from or against Azienda in connection with the Principal or the Managed Entity arising from the provision of the Services other than liabilities arising from the fraud, wilful misconduct or gross negligence of Azienda. This indemnity shall continue in force without limit in time and without prejudice to any other indemnity in favour of Azienda.
Azienda reserves the right to terminate the Services as follows:
- Upon 90 day’s written notice from Azienda to the Principal;
- Immediately upon written notice to the Principal if Azienda, in its absolute discretion, considers that:-
- the Principal or the Managed Entity is insolvent or liable to be declared bankrupt, en désastre or subject to a creditors’ (insolvent) winding up or any equivalent or similar procedure in any jurisdiction;
- the Principal is in material breach of the Terms of Business;
- there has been a change of beneficial ownership of the Managed Entity;
- the Principal, Managed Entity or any officer thereof, is charged with any criminal offence involving dishonesty or is or has been the subject of any criminal, judicial or regulatory investigation in any jurisdiction (unless frivolous);
- the Principal has failed to supply such anti-money laundering information or documentation as Azienda shall reasonably require, or such information supplied is materially false or misleading;
- the fees levied by Azienda have remained unpaid in whole or in part for more than 90 days after the invoice date.
The Principal may terminate the Services on giving to Azienda 90 day’s written notice.
Upon termination of the Services for any reason the Principal shall immediately provide Azienda details of the new service provider to whom all documentation is to be sent and of the officers to be appointed. In the event of such information not being provided, Azienda reserves the right to arrange the resignation of the directors and officers provided by Azienda without appointment of successors, to transfer any shares held by Azienda or its nominees into the name of the Principal and to notify the Luxembourg Registrar of Companies (Registre de commerce et des sociétés) or any other competent relevant authority in Luxembourg or elsewhere as may be appropriate, that Azienda is no longer providing registered office or domiciliation or other related administrative or accounting services.
Azienda shall be entitled to charge and be paid for any work done in the transfer of a Managed Entity’s business and all fees paid in advance shall be non-refundable.
Any obligation (including fees due to Azienda) outstanding at the time of termination of the Agreement shall be promptly paid by the Principal or Managed Entity or caused to be paid by the Principal or Managed Entity, without deduction or set off in respect of any claim the Principal may have, and until adequate security for any obligation has been provided, Azienda shall have the right to retain any and all Corporate Records of the Managed Entity.
10. Record Retention & Location
Azienda will retain, in electronic form, Corporate Records relating to the Principal or Managed Entity (excepting those returned to the Principal or transferred to any third party authorised by the Principal) for a period of 10 years, or other such period as may be prescribed by the laws of the Relevant Jurisdiction, after the expiry of which Azienda may destroy such records. A charge for such retention would not normally apply unless agreed in writing between Azienda and Principal or Managed Entity.
During the period of Services provision, Azienda shall not destroy any physical documents that the Principal specifically requests Azienda retain and deposit in secure safe custody, for which a charge will be levied.
After termination of the Services to the Principal and or the Managed Entity Azienda may retain, in physical form, Corporate Records relating to a Principal or Managed Entity (excepting those returned to the Principal or transferred to any third party authorised by the Principal) for a period of 10 years, or other such period as may be prescribed by the laws of the Relevant Jurisdiction, after the expiry of which Azienda will destroy them. Azienda reserves the right to charge the Principal or the Managed Entity, in advance, for the storage of the Corporate Records being retained on behalf of the Principal and or Managed Entity during this retention period.
After termination of the Services Azienda is entitled to retain all Corporate Records until all fees and expenses are settled in full.
Electronic and physical records will be retained in a secure location. Where records are in physical form they may be held at the offices of Azienda or in secure archive facilities within the Relevant Jurisdiction unless otherwise agreed with the Principal or Managed Entity. Where records are held in electronic form they may be held in databases, at secure sites, located in Luxembourg.
11. Data Protection
Azienda complies with the data protection legislation (Directive 95/46/EC on data protection as implemented in Luxembourg through the Act of 2002).
The Principal agrees that Azienda and Azienda Employees may hold and process electronically, manually or otherwise any information, including personal data and personal sensitive data, held about the Principal as required to meet regulatory or contracted Services obligations.
Whether these records are held in electronic or physical form they may be held in databases or at secure sites, located in Luxembourg. Information may also be transmitted to or entered into systems located in other countries, directly or via contracted service agents. Where such occurrence takes place, Azienda will ensure that the recipient of such information or the contracted service agent observes the same duties of confidentiality in relation to such information as Azienda owes to the Principal under these Terms of Business.
Any person may at any time request a copy of any personal data which Azienda holds about that person in accordance with the data protection legislation in Relevant Jurisdictions.
Azienda reserves the right to use any data for marketing and promotion of other services offered by Azienda unless requested in writing not to do so.
12. Other Professional Services
Where Azienda considers it is necessary or appropriate to seek advice as to the tax position or law which governs the Managed Entity upon any matter, Azienda has the right to use the services of a tax expert or lawyer qualified in the relevant jurisdiction to provide such advice and Azienda shall not be entitled to recover the costs thereof from the Managed Entity or the Principal as appropriate (unless agreed in advance and in writing by the Principal).
Azienda further reserves the right, wherever it considers it necessary or appropriate in providing the Services, to share Principal and or Managed Entity information and delegate any of Azienda’s responsibilities or functions and/or to seek advice from any third party or agent, in all cases where this is deemed necessary. In all such cases the fees and disbursements of the third party or agent may not be shown as a disbursement on the Principal’s next invoice (unless agreed in advance and in writing by the Principal).
13. Conflicts of Interest & Services provided to other persons
Azienda provides Services to other Principals and Managed Entities and may from time to time be in a position where it is providing services to other persons which may be regarded as giving rise to a potential or actual conflict of interest in the case of a particular Principal or Managed Entity.
Where a Principal, Managed Entity or officer thereof becomes or is made aware of a potential or actual conflict of interest this should immediately be drawn to the attention of Azienda.
Where Azienda or Azienda Employee becomes or is made aware of a potential or actual conflict of interest or duty, and where the interests of the Principal, Managed Entity, Azienda and the Azienda Employees can be properly safeguarded and the conflict appropriately managed, procedures will be discussed and agreed in order to preserve confidentiality and ensure that Services, advice and opinions received by the relevant managed entities are independent.
14. Other agreements and variations
These Terms of Business together with the Terms of Engagement and any other agreement or document entered into by Azienda in relation to the provision of the Services shall constitute the entire agreement and understanding of Azienda, the Managed Entity and the Principal in connection with the provision of the Services. In the event that there is any conflict between these Terms of Business and the provisions of the Terms of Engagement or any such other direct agreement or document then the provisions of such other agreements and documents shall prevail over these Terms of Business.
Any complaint arising out of the provision of the Services shall be dealt with on a timely basis and responded to by Azienda within the times prescribed in Regulation in the Relevant Jurisdiction.
Azienda’s director responsible for the Principal’s affairs will attempt to resolve complaints fully and promptly. In the event that the Principal remains dissatisfied, Azienda’s Managing Director, will undertake an independent review.
These Terms and Business shall be construed in accordance with and governed by the laws of the Grand Duchy of Luxembourg and the Parties submit to the non-exclusive jurisdiction of the courts in Luxembourg in connection herewith.