Terms of business Arendt Regulatory & Consulting

These General Terms and Conditions govern all the service proposals, business and contractual relationships between the Client and Arendt Regulatory & Consulting as well as all assignments accepted by the latter. The general terms and conditions of the Client, if any, will not bind Arendt Regulatory & Consulting in any manner.

1. PROPOSALS

Proposals do not constitute a commitment from Arendt Regulatory & Consulting as long as they are not accepted by the Client. They shall give the most accurate description of the services to be performed. They remain valid for a period of thirty (30) days.

2. DEFINITIONS

Agreement means any written agreement, also often referred to as a “letter of engagement”, (including its exhibits as amended, varied, and supplemented from time to time) entered into between the Client and Arendt Regulatory & Consulting regarding the performance of Services to be provided to the Client by Arendt Regulatory & Consulting at the request of the Client.

Arendt Regulatory & Consulting means Arendt Regulatory & Consulting S.A., a société anonyme existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 41A, Avenue JF Kennedy, L-2082 Luxembourg, R.C.S. Luxembourg B 175516.

Client is the Client as defined in the Agreement.

Force Majeure means any occurrence which (i) hinders, delays or prevents a Party from performing any of its obligations, and (ii) is beyond the control of, and without the fault or negligence of, such Party, and which (iii) by the exercise of reasonable diligence such Party is unable to prevent or provide against.

Services mean any services to be provided to the Client by Arendt Regulatory & Consulting as contemplated in the Agreement.

The Client and Arendt Regulatory & Consulting are hereafter referred to as the “Parties” and each individually as a “Party”.

Words in the singular include the plural and vice versa. The words “including”, “include”, “in particular” or any similar expression are to be construed as illustrative and do not limit the meaning of the words preceding those terms.

In these General Terms and Conditions, unless otherwise specified or the context otherwise requires, a reference to a person includes a reference to governments, foundations, individuals, legal entities, firms, partnerships, companies, corporations, associations and organizations (in each case irrespective of whether or not they have a separate legal personality).

Any words in capital letters not defined in these General Terms and Conditions are defined in the Agreement.

3. SCOPE OF THE GENERAL TERMS AND CONDITIONS

3.1. These General Terms and Conditions exclusively apply to and govern any Agreement pertaining to the provision of Services by Arendt Regulatory & Consulting to the Client.

3.2. In the event of any discrepancy between a provision of these General Terms and Conditions and provisions contained in the Agreement, the provisions of the Agreement prevail.

4. MONEY LAUNDERING

4.1. The Client acknowledges that, pursuant to Luxembourg law, Arendt Regulatory & Consulting is subject to rules and regulations pertaining to combating money laundering and terrorism financing and therefore that it has the obligation inter alia to identify and verify the identity of its clients, their legal / tax status and, where applicable, that of their beneficial owner(s), obtain information on the purpose and nature of the business relationship and the origin of funds and conduct ongoing monitoring of the business relationship.

4.2. The Client acknowledges that the rules and regulations mentioned above require Arendt Regulatory & Consulting to, under certain conditions, report any suspicious activity to the relevant Luxembourg authorities. In the event that Arendt Regulatory & Consulting has any such suspicion, its obligation to report to the relevant authorities will prevail, notwithstanding any confidentiality obligations. Arendt Regulatory & Consulting will not be liable for any loss which may arise as a result of any such disclosure to the relevant authorities or the consequences resulting therefrom.

5. SERVICES

5.1. The Services to be performed by Arendt Regulatory & Consulting are only those covered by the Agreement.

5.2. Arendt Regulatory & Consulting has the right to change the composition of the team in charge of the Services.

5.3. For the performance of the Services, Arendt Regulatory & Consulting may request advice or assistance and/or delegate in whole or in part the performance of the Services.

5.4. The performance of any Services by Arendt Regulatory & Consulting is subject to the fulfillment by the Client of the obligations contained in Clauses 4 and 6 of these General Terms and Conditions.

6. OBLIGATIONS OF THE CLIENT

The Client undertakes:

6.1. to cooperate with Arendt Regulatory & Consulting without reserve and provide it, in due time, with all the information required to enable Arendt Regulatory & Consulting to comply with its obligations under Luxembourg law, the Agreement and these General Terms and Conditions.

6.2. in particular to provide to Arendt Regulatory & Consulting and/or to ensure that Arendt Regulatory & Consulting is provided with all the documents it has requested in order to fulfill its obligations pursuant to the rules and regulations pertaining to combating money laundering and terrorism financing.

6.3. to refrain from doing anything that may affect the financial situation, independence or reputation of Arendt Regulatory & Consulting, its affiliates, its directors, its employees or its associates.

6.4. to give its instructions to Arendt Regulatory & Consulting only in written form (letter, fax, email), the Client bearing the burden of proof that such communication has been received.

6.5. to provide Arendt Regulatory & Consulting with timely access to all data, information and contact persons for the execution of the Agreement. The Client is responsible for the accuracy and completeness of all data and information provided to Arendt Regulatory & Consulting.

7. OBLIGATIONS OF ARENDT REGULATORY & CONSULTING

7.1. Arendt Regulatory & Consulting will use and exercise reasonable skills, efforts and care in the performance of its services. In no event is Arendt Regulatory & Consulting bound by an obligation of result (“obligations de résultat”).

7.2. Arendt Regulatory & Consulting will ensure that the Client’s documents are kept with care. Arendt Regulatory & Consulting will not be held liable for any loss or deterioration, whether partial or total, resulting from an instance of Force Majeure, theft, fire, flood, explosion or similar events.

8. FEES

8.1. Estimates are provided for information purposes only and should not be considered as quotes.

8.2. Fees for the Services to be performed by Arendt Regulatory & Consulting will be determined in the Agreement.

8.3. All fees and hourly rates are exclusive of VAT and disbursements (e.g. out-of-pocket expenses, if any, notary fees, publication fees, disbursements, registration fees and generally any external service provider fees or specific expenses, such as travelling and translation costs) and will be based on the cost-of-living index applicable in Luxembourg (“indice pondéré du coût de la vie”). Moreover, Arendt Regulatory & Consulting is entitled to increase its hourly rates from time to time.

9. PAYMENT TERMS AND CONDITIONS

9.1. The Client is responsible for the payment of fees unless the Parties have agreed otherwise in writing.

9.2. Fees will be invoiced in euros. All payments will be made in the same currency as the currency in which the Services are invoiced to the account of Arendt Regulatory & Consulting as indicated on the invoices. All bank charges and fees that arise out of or are in any way related to any payment made by the Client are to be borne by the Client.

9.3. Arendt Regulatory & Consulting may ask the Client to pay one or several fee installments in advance. If the Client fails to pay such fee installments, Arendt Regulatory & Consulting reserves the right to charge the Client for any work already done.

9.4. Invoices issued for the performance of the Services are payable within the term specified in the invoice or in the Agreement. Fees and expenses are payable upon receipt, if no derogating term of payment is mentioned on the invoice or in the Agreement.

9.5. In the event that payment is not made within thirty (30) days after the date of issuance of the invoice, interest will be charged as provided for by Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payments in commercial transactions.

9.6. Should any claim or dispute arise regarding the validity of the Agreement and/or the performance of the Services and/or the amount of fees, the Client will not be released from its obligation to make the payment in full and the fees remain payable by the due date.

9.7. Arendt Regulatory & Consulting is entitled to retain all the Client’s papers, documents and already produced deliverables until all amounts due or accrued have been paid.

10. TAXES

10.1. All prices are exclusive of any taxes and the Client is responsible for the payment of value added taxes and other taxes, duties, tax levies and other fees which are due, or may become due with respect to the Agreement and its execution.

10.2. The Client agrees to indemnify Arendt Regulatory & Consulting if, for any reason, Arendt Regulatory & Consulting has to pay any such taxes.

11. LIMITATION OF LIABILITY

11.1. Arendt Regulatory & Consulting and/or its employees are only liable for any consequential, incidental, direct or indirect, punitive or special damage of any kind in cases of gross negligence or willful misconduct.

11.2. The liability of Arendt Regulatory & Consulting is limited to the lower of (i) five times the amount of the total fees charged by Arendt Regulatory & Consulting in the relevant matter or (ii) EUR 1,000,000 (one million euros).

11.3. In the event that the Client fails to perform its obligations pursuant to the Agreement, Arendt Regulatory & Consulting and/or its employees will not be held liable for the non-performance of its own obligations arising out of the Agreement.

11.4. Arendt Regulatory & Consulting must, as far as possible, consult the Client before engaging third parties, and must in any event exercise the requisite due care in selecting such third parties. Arendt Regulatory & Consulting will not be liable for any acts or omissions of third parties. The Client authorises Arendt Regulatory & Consulting to accept any limitations of liability of third parties on the Client’s behalf.

12. FORCE MAJEURE

12.1. A Party is not to be held liable for any delay or failure to perform any of its obligations if such delay or failure arises from or is attributable to a Force Majeure event.

12.2. If a Party suffers a Force Majeure event, then the performance of its obligations will be suspended. If the Force Majeure event continues for more than one (1) month the Parties may negotiate in good faith the termination or partial termination of the Agreement in connection with the Services the performance of which has been rendered impossible because of the Force Majeure event.

12.3. Force Majeure under no circumstances discharges the Client from its obligation to pay the amounts due to Arendt Regulatory & Consulting pursuant to the Agreement.

13. DURATION AND TERMINATION

13.1. The General Terms and Conditions are effective on the date of the beginning of the business relationship between the Parties or, at the latest, on the Effective Date of the Agreement entered into between Arendt Regulatory & Consulting and the Client.

13.2. If the Agreement is entered into for an unlimited period of time, it may be terminated by either Party upon two (2) months prior notice.

13.3. Notwithstanding the preceding provisions, the Agreement may be terminated at any time by either Party with immediate effect in the event of serious misconduct by the other Party. The following are considered as examples of serious misconduct:

14. INTELLECTUAL PROPERTY RIGHTS

14.1. Arendt Regulatory & Consulting is the owner or the licensee of (i) its name, logo, domain names, used or appearing on its documents and website and (ii) any intellectual property rights in connection with its name, logo and/or the Services (“Intellectual Property Rights”).

14.2. The Client agrees not to copy or use the name, domain name and/or the Intellectual Property Rights in any manner, without the prior written consent of Arendt Regulatory & Consulting.

14.3. All documentation belonging to Arendt Regulatory & Consulting is subject to copyright and may not be copied or reproduced without its written consent.

15. MANDATORY DISCLOSURE TAX RULES

15.1 To the extent that (i) a matter entrusted to Arendt Regulatory & Consulting is likely to constitute a reportable cross-border arrangement (“Arrangement”) within the meaning of the law of 25 March 2020 implementing Council Directive 2018/822/EU of 25 May 2018 (“DAC 6 Law”) and (ii) Arendt Regulatory & Consulting does not act as main tax advisor in relation to the same matter, the Client must provide Arendt Regulatory & Consulting, upon request and without delay, with information on the characterisation of the Arrangement for the purpose of applying the DAC 6 Law as well as any supporting documents. If no such information and supporting documents are provided, the Client undertakes to hold Arendt Regulatory & Consulting harmless and to indemnify Arendt Regulatory & Consulting against all liabilities, damages, losses or claims arising from such absence.

15.2 A matter is likely to constitute a reportable cross-border arrangement where it includes indications of potential risk of tax avoidance, also called “hallmarks”. Hallmarks are specifically listed by the DAC 6 Law. Some hallmarks trigger the reporting obligation only if the arrangement satisfies a main benefit test.

16. DATA PROTECTION

16.1. In accordance with the provisions of the data protection law applicable to the Grand-Duchy of Luxembourg and Regulation (EU) 2016/679 of 27 April 2016 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“Data Protection Law”), the Client acknowledges that, acting as data controller, Arendt Regulatory & Consulting collects, stores and processes, by electronic or other means, the Client’s personal data in order to provide the services required and to comply with Arendt Regulatory & Consulting’s legal obligations.

16.2. If the Client is an individual, the data processed includes in particular their name, address, date and place of birth, nationality, profession, contact details, banking information, or any other personal data contained in the file entrusted with Arendt Regulatory & Consulting. If the Client is a legal person, the same categories of data may be processed as regards (i) its contact persons at the Client’s firm and ii) its beneficial owners (altogether the “Personal Data”).

16.3. The Personal Data the Client provides to Arendt Regulatory & Consulting is processed for the purposes of handling the Client’s queries, managing Arendt Regulatory & Consulting’s files, client relationship management and complying with any applicable legal obligations such as anti-money laundering and terrorism financing requirements.

16.4. The Client acknowledges their right to:
(i.) access their Personal Data,
(ii.) ask for their Personal Data to be rectified where it is inaccurate or incomplete,
(iii.) object to the processing of their Personal Data,
(iv.) ask for erasure of their Personal Data,
(v.) ask for data portability if certain conditions provided under the Data Protection Law are met,
(vi.) restrict the processing of Personal Data.

16.5. The Client also acknowledges the existence of their right to object to the use of their Personal Data for marketing purposes, pursuant to point (iii) above.

16.6. The Client may exercise the above rights by sending an email to dpo@arendt.com or by writing to our Data Protection Officer at:
Arendt & Medernach
FAO: Nathalie Bloch, Data Protection Officer
41A, Avenue JF Kennedy
L-2082 Luxembourg
Grand Duchy of Luxembourg

16.7. The Client also acknowledges the existence of their right to lodge a complaint with the National Commission for Data Protection.

16.8. The Client’s Personal Data may be transferred to other entities or individuals located within or outside the European Union (namely Arendt Regulatory & Consulting’s affiliate entities, independent experts, notaries, bailiffs or foreign lawyers). The Client’s Personal Data will not be transferred to any country outside the European Union that does not ensure an adequate level of protection unless the Client has given Arendt Regulatory & Consulting prior authorisation to do so or specific measures (such as adequate contractual arrangements) have been taken by Arendt Regulatory & Consulting in order to ensure that the requirements of the applicable data protection law have been fulfilled. Arendt Regulatory & Consulting may also transfer Personal Data to other third parties, such as governmental or regulatory agencies including tax authorities, within or outside the European Union, in accordance with applicable laws and regulations. In any case, any transfer of Personal Data will be undertaken in compliance with the strict professional secrecy rules under Luxembourg law.

16.9. Arendt Regulatory & Consulting will not retain the Personal Data for longer than required for the purposes of its processing, subject to the legal limitation periods.

17. NON-EXCLUSIVE AGREEMENT

The Client acknowledges and agrees that Arendt Regulatory & Consulting is able to provide the same kind of Services to other clients.

18. COMMUNICATIONS

18.1 Arendt Regulatory & Consulting will communicate with the Client by e-mail, mail, and fax. Unless otherwise notified in writing by the Client, Arendt Regulatory & Consulting will assume that the Client agrees to communicate by e-mail or fax.

18.2. All notices required to be given under these General Terms and Conditions must be given in writing.

18.3. Arendt Regulatory & Consulting may accept receiving instructions by phone only if these instructions are confirmed in writing.

19. AMENDMENT

Any variation, modification or amendment to these General Terms and Conditions is deemed valid once received by the Client and if the latter tacitly accepts it. The Client is considered to have tacitly accepted the modification or amendment if Arendt Regulatory & Consulting does not receive, a letter from the Client refusing such modification or amendment to the General Terms and Conditions within thirty (30) days as from the sending of the amendment or modification.

20. SEVERABILITY

20.1. In the event that one or more provisions of these General Terms and Conditions and/or of the Agreement is considered invalid, illegal, inapplicable, unlawful or unenforceable for any reason, the other provisions remain valid and enforceable according to their terms.

20.2. In the event of such partial invalidity, the Parties must seek in good faith to agree on replacing any such legally invalid, illegal, inapplicable, unlawful or unenforceable provision with a valid and enforceable provision which most nearly and fairly reflects the Parties’ intent when entering into these General Terms and Conditions and/or the Agreement.

21. NON-WAIVER

Tolerance by one Party regarding any delay, breach or failure in the performance of obligations by the other Party with respect to these General Terms and Conditions and/or the Agreement does not affect or restrict such Party’s rights and powers arising under these General Terms and Conditions and/or the Agreement.

22. NON-SOLICITATION

During the term of the Agreement and for a period of eighteen (18) months immediately afterwards, the Client will not directly or indirectly induce or seek to induce any employee of Arendt Regulatory & Consulting to leave the latter’s employment for employment with the Client. Any breach of this clause will give rise to an indemnity equal to twenty-four (24) months of remuneration to be paid by the Client to Arendt Regulatory & Consulting.

23. ASSIGNEMENT

23.1 Arendt Regulatory & Consulting may, without the prior written consent of the Client, assign or transfer these General Terms and Conditions and/or the Agreement or any of its rights under these General Terms and Conditions and/or the Agreement, or sub-contract any or all of its obligations under these General Terms and Conditions and/or the Agreement.

23.2. The Client may not, without the prior written consent of Arendt Regulatory & Consulting, assign, transfer, charge or deal in any other manner with these General Terms and Conditions and/or the Agreement or any of its rights under these General Terms and Conditions and/or the Agreement, or purport to do any of the same, nor sub-contract any or all of its obligations under these General Terms and Conditions and/or the Agreement.

24. SURVIVAL

In the event of termination of these General terms and Conditions, the clauses of the General Terms and Conditions, in particular Clauses 4, 8, 9, 11, 14, 16, 21, 24 and 25 which are expressed or implied to continue after termination or expiration survive the termination.

25. GOVERNING LAW AND JURISDICTION

25.1. These General Terms and Conditions and the Agreement are governed by and are to be construed in accordance with the laws of the Grand Duchy of Luxembourg.

25.2. Any dispute arising regarding the existence, performance or interpretation of these General Terms and Conditions or the Agreement must be submitted to the exclusive jurisdiction of the courts of Luxembourg, Grand Duchy of Luxembourg.