These Terms and Conditions form part of an Agreement between the Manager and the Client and any Company in relation to the provision of the Services and any limitations or exclusions of the liability of the Manager and any indemnities in favour of the Manager shall also benefit and be enforceable by the Manager’s directors, officers, employees and agents pursuant to the Contracts (Rights of Third Parties) Act 2001.
2.1 In this Agreement the “Company” means the entity (including but not limited to a Company, a company (including an LLC) incorporated under the Companies Acts 1931-2004, a foreign company or similar body, or a company incorporated under the Companies Act 2006 (“2006 Company”) or collection of such entities provided or administered by the Manager for the Client at the request of or on behalf of the Client. Where it is subsequently necessary or where the Manager is requested to provide services not expressly outlined and agreed between the Client, the Company and the Manager at the outset, this Agreement (including any amendments hereto) will also apply in respect thereof
2.2 In this Agreement, unless there is something in the subject or context inconsistent with such construction:
(a) words importing the singular include the plural, and vice versa;
(b) words importing any gender include every gender, and vice versa;
(c) words importing persons include bodies of persons corporate and unincorporate, and vice versa.
(d) where a Company or Client consists of more than one person their liabilities shall be joint and several.
3. Tax and other professional advice
3.1 The Client and the Company hereby acknowledge that the Manager is not a tax or legal advisor and has not provided tax or legal advice in respect of the Client or the Company or the provision of any Services. Further, all parties acknowledge that the Manager takes no responsibility for tax and/or legal aspects of the affairs of the Client or the Company except to the extent expressly agreed in writing. The Client confirms and agrees that the necessary tax and other professional advice has been or will be sought in all relevant jurisdictions (including but not limited to the Isle of Man). In relation to the establishment, provision, operation, conduct and on-going use of the Company and the provision of the Services, the Client and/or the Company will promptly supply details of that advice to the Manager insofar as it affects the Company, the provision of any Services, the Manager or any tax reporting requirements arising on the Manager. Save as agreed in writing the Manager is not responsible for advising the Client in relation to any matter.
3.2 The Client and the Company agree that in connection with the provision of the Services the Manager may subcontract the performance of its obligations and in particular in connection with the supply of any Corporate Services and may instruct legal and other advisors from time to time on behalf of the Company. The Manager shall remain liable for the due performance of such obligations subject to the indemnity and limitation of liability arrangements referred to herein.
4. The obligations of the Company and the Client
4.1 The Client and the Company give the undertakings and indemnities set out herein in consideration for the Manager agreeing to provide the Services to the Company. The Client and the Company hereby undertake, confirm, guarantee and covenant the following:
(a) That any funds or assets introduced to the Company or made available for use by the Manager are lawful property and are not derived from or otherwise connected with any illegal activity (including but not limited to tax evasion and exchange control breaches) and further that the Client will provide independent written evidence as to the source of any funds or assets introduced to the Company or made available for use by the Manager;
(b) That no requests by or on behalf of the Client will involve any unlawful act nor is it the Client’s intention that the Company be engaged or involved directly or indirectly in any unlawful activity or be used for any unlawful purpose. Further, no requests by or on behalf of the Client will oblige the Manager to act in any manner which is unlawful, ultra vires the Company or, in the opinion of the Manager, detrimental to the name and reputation of the Manager;
(c) That in all circumstances, the Client will keep the Manager adequately informed as to the nature of the activities of itself or the Company and will notify the Manager of any substantial changes in respect thereof and of any external developments or changes of which he becomes aware and which may affect the Client or the Company. In addition, the Client will use best endeavours to ensure that it and the Company are run in a proper and business-like manner, that they comply with all legislation and filing requirements in any applicable jurisdiction, that all taxes and governmental duties payable by it or the Company are discharged, and further that the contact details of the Manager do not, without the prior written consent of the Manager, appear on any letterhead, advertising material or other documentation of the Client or the Company;
(d) That in exceptional circumstances in connection with the supply of any Corporate Services where the Manager provides officers to the Company in addition to one or more external individuals (including, but not limited to, the Client) the Client agrees that failure to keep the Manager fully involved in all affairs and decision making relating to the Company will be a breach of this Agreement and may result in immediate termination of all services provided by the Manager;
(e) That the Client will as a condition of this Agreement ensure that sufficient funds are available to the Manager or within the Company to settle all fees, disbursements, costs and expenses due to the Manager and any third parties in respect of all or any of the Services. In the event that there are insufficient funds available to settle such fees the Client agrees to be personally liable and to act as guarantor for such fees plus interest and legal costs as appropriate. In addition, the Manager reserves the right to take appropriate steps to recover outstanding fees and expenses, whether in accordance with professional advice or otherwise, including borrowing against or selling the Company’s assets;
(f) That in connection with the supply of any Corporate Services the Client is the ultimate and effective beneficial owner of the Company or is one of the ultimate and effective beneficial owners of the Company and is not acting as nominee for any other person. Further, the Client will keep the Manager fully and promptly informed of any changes or dealings in relation to the beneficial ownership of the Company (whether by sale, pledge, transfer or grant of option or agreement or otherwise) and agrees that such changes or dealings may take place only with the written consent of the Manager. In the event of any change as aforesaid, the Client accepts responsibility for ensuring that any new beneficial owner provides satisfactory “Know Your Client” information to the Manager and formally adopts this Agreement (including any amendments hereto) in writing, until which time the Client will remain responsible for the payment of all fees, costs, outlays and other expenses due to the Manager and/or any third party in respect of the Company; and
4.2 From time to time the Manager may request certain information, whether in accordance with its own policies or “Know Your Client” regulations. In such cases, the Client and the Company agree to disclose to the Manager upon request any and all information concerning itself or the Company or its business, and to provide on demand such information, records, documents and financial statements as the Manager considers necessary in order to ensure that the Manager, the Client and the Company comply with all applicable policies, legislation and regulations, and that officers provided by the Manager are able to perform their duties satisfactorily and to the standard imposed by all applicable legislation.
4.3 The Client and the Company agree that all information disclosed or to be disclosed to the Manager is or will be true, accurate and not misleading in any material respect. The Manager will rely on, and may not independently verify, the accuracy and completeness of the information supplied to it. The Client and the Company are responsible for informing the Manager of any changes to the information originally presented to it and the Client and the Company hereby agree to keep the Manager fully informed of any changes or information which may be material to the establishment and administration of the Company.
4.4 The Client and the Company undertake forthwith to inform the Manager of any other matters that might affect the Company and/or the Manager’s ability or willingness to provide, or continue to provide, any of the Services or any matter that is material to the management or affairs of the Company or the provision of the Services.
4.5 The Client and Company agree that where appropriate or necessary, insurance cover will be instituted in respect of the Client and the Company and its or their assets and that all related costs will be discharged and/or indemnified by the Company or by the Client as guarantor for the Company or on its own account.
4.6 The Client irrevocably agrees that the Manager can (but shall not in any event be obliged to) rely on communications received from him in determining what steps it is required to take in providing the Services.
4.7 Where applicable in connection with the supply of any Corporate Services the Company shall comply with statutory requirements in respect of preparation and presentation of financial statements (and audit where necessary) and the Client agrees to provide full assistance to ensure compliance with statutory requirements.
4.8 The Client and the Company agree to provide the Manager with full contact details including addresses, facsimile and telephone numbers, mobile telephone numbers and email addresses in order to facilitate contact at all times, and further the Client and the Company agree to inform the Manager of any changes which may occur from time to time in their contact details.
4.9 In connection with the supply of any Corporate Services and where the Company is a 2006 Company the Company shall on an on going basis and in any event promptly upon being requested to do so provide to the Manager all documents and information in its power or possession relating to the Company’s affairs which in the Manager’s opinion are reasonably necessary or desirable to enable the Manager to provide the Service and in particular but without limitation where the Manager acts as the Company’s registered agent (within the meaning of the Companies Act 2006) the Company shall promptly upon being requested to do so provide the Manager (in the form of Microsoft Excel or QuickBooks electronic files or such other form as is reasonably acceptable to the Manager) all such documents and information which in the Manager’s opinion are necessary or desirable to enable the Company to comply with the requirements of the Companies Act 2006 relating to the documents, registers and accounting and other records which the Company is required to keep at the office of its registered agent and the Client will ensure that the Company complies with the foregoing obligations.
4.10 Where the Company is a 2006 Company and is contracting with third parties whose work may affect the Manager’s ability to provide the Services the Company and the Client will ensure that the Company has appropriate agreements in place with those third parties to ensure that the Company complies with the requirements of clause 4.9 in respect of all documents and information from time to time in the possession of such third parties. The Company and the Client will be responsible for the management of the third parties and for ensuring that the quality of their input and work meets the requirements of this Agreement and will indemnify the Manager against all liabilities, losses, damage, costs and expense arising from any failure to comply with the foregoing obligations.
5. The Manager’s duties
5.1 The Manager is appointed to act by Client or as the case may be the Company and its duties are owed solely to the Client or as the case may be Company on the basis of these Terms and Conditions. The Manager will provide the Services (or such other Services as may be agreed in writing between the Company and the Manager) with the reasonable skill and care of a professional manager of e-Gaming companies in relation to the Management Services it provides and of a corporate service provider in relation to any Corporate Services it provides and in all cases in a reasonably timely manner. Time shall not be of the essence of the performance of these Services.
5.2 The Manager shall answer enquiries over the telephone or in meetings, on an informal basis. As these oral answers may involve an immediate answer to a matter in respect of which the Manager has not received full and accurate information, the Manager shall have no liability to the Company or the Client in contract or tort (including negligence) for its oral answers.
5.4 Any draft letters or reports the Manager might provide will not constitute its definitive opinion or conclusions, which will be contained solely in a final written format.
6. Fees and invoicing arrangements
6.1 The fees referred to in Schedule 2 are in accordance with the Manager’s scale of charges as at the date of the Agreement. Subject to any contrary agreement in writing in relation to annual or other periodic charges the Manager shall be entitled to vary such scale of charges by not less than 30 days notice. All fees and charges are exclusive of VAT and other applicable duties (if any), which shall be payable in addition to such fees and charges. All expenses and disbursements incurred (subject to the provisions of this Agreement) by the Manager for or on behalf of the Client or the Company will be re-charged at cost and the Manager will, on request, supply copies of the relevant receipts or other details.
6.2 Fees are payable at the times and in the manner stated in Schedule 2. All amounts invoiced by the
Manager by way of fees, expenses, disbursements or other charges are payable on despatch of the invoice, in pounds sterling and in cleared funds. The timeliness of payments is of the essence in this Agreement.
6.3. The Manager’s fees will, where appropriate, reflect time spent and such factors as complexity, monetary values and specialist input, and will take into account urgency and inherent risks and the use of techniques, expertise, research and know-how developed by the Manager.
6.4 The Client and the Company agree forthwith on demand to indemnify the Manager in respect of all and any liabilities, costs or expenses incurred by the Manager in the course of providing the Services. The Manager will not be required to incur any expenses or make any payments in the course of providing the Services unless the Manager has received sufficient funds in advance.
6.5 The Manager shall be entitled and is irrevocably authorised to withdraw funds from any moneys held by it on behalf of, or any account managed by it on behalf of, the Client and/or the Company in order to discharge all and any fees and expenses payable hereunder.
6.6 Unless otherwise agreed all discounts and commissions obtained by the Manager in providing the Services shall be credited to the Client or the Company except in relation to such organisations for whom the Manager acts as a commercial agent as from time to time notified to the Client in writing.
6.7 Any fee estimate provided by the Manager will be given in good faith but will be subject to the stated caveats and assumptions and to any factors outside the Manager’s control and is not contractually binding. The Manager will give prior notification to the Company and to the Client if it reasonably becomes apparent that the estimate is likely to be materially exceeded.
6.8 Any queries concerning an invoice should be raised within 30 days of the invoice date with any undisputed amounts remaining paid by the due date. Without prejudice to any other of its rights, in the event of late payment of any fees, disbursements, costs or expenses (including any amounts payable in advance) the Manager reserves the right to exercise in its discretion either or both of the following remedies namely to suspend the provision of Services and to charge interest on amounts overdue for a period in excess of 30 days at a rate which is 2% over LIBOR.
7. Monies held by the Manager
7.1 Monies held by the Manager on behalf of the Company and/or the Client may be held in a clients’ account in trust for the Company or the Client as the case may be PROVIDED THAT for the avoidance of doubt the Company acknowledges that any money held in the Company’s bank account shall not be held in a trust account. Save for its wilful default, the Manager accepts no liability to the Client or the Company for any loss suffered by reason of the insolvency of any bank or building society with whom such an account is held.
7.2 The Manager shall use all reasonable endeavours to procure that amounts held in a clients’ account are interest bearing at a reasonably competitive rate of annual interest and shall provide details of such rates from time to time on request PROVIDED THAT no interest shall be payable in respect of balances not exceeding £5,000 or other sum from time to time designated by the Manager.
7.3 All interest earned on monies held in accordance with clause 7.2 hereof shall accrue for the sole benefit of the Client or the Company as the case may be and shall be credited to the relevant account.
8. Indemnity, Limitation of Liability and Force Majeure
The Client and the Company jointly and severally undertake and agree to indemnify the Manager against all and any costs, claims, losses, expenses, damages and liabilities whatsoever (including without limitation legal costs and expenses on a full indemnity basis) that may be incurred or suffered by the Manager howsoever arising, directly or indirectly, (other than by reason of fraud or dishonesty on the part of the Manager) in connection with the provision of the Services or the performance of this Agreement and in connection with the provision of any such Services the performance of the duties of any the Manager’s directors, officers, employees and agents as officers of the Company.
8.2 Limitation of Liability
8.2.1 Without prejudice to any other of the provisions of this Agreement, the Manager shall be under no liability (whether in contract, tort (including negligence and breach of statutory duty) or otherwise howsoever) to the Client or the Company for any loss, damage, delay or expense of whatsoever nature and howsoever arising during the performance of or in connection with this Agreement UNLESS the same is proved to have resulted directly from the gross negligence of the Manager in which case the Manager’s liability for each incident or series of incidents giving rise to a claim or claims shall not exceed £100,000 and in the aggregate for any such incidents or series of incidents occurring in any calendar year shall not exceed £250,000, PROVIDED that the foregoing provisions shall not apply to death or personal injury resulting from the Company’s negligence or to any liability arising from fraud on the part of the Manager.
8.2.2 Notwithstanding anything to the contrary in this Agreement, the Manager shall not be liable for the acts or omissions of the consultants or contractors of any e-Gaming entity, even if such acts or omissions are grossly negligent, except only to the extent that they are proved to have resulted from a breach of an express obligation of the Manager relating to the supply of the Services in which case its liability shall be limited in accordance with the terms of the preceding clause 8.2.1
8.2.3 The Manager shall have no liability in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever under or in connection with this Agreement for any indirect or consequential loss suffered by the Client or the Company, including but not limited to wasted time or expenditure, loss of profit, enjoyment, revenue, business or expected savings or goodwill.
8.2.4. The Manager shall not be liable for any loss sustained by the Client or the Company as a result of any loss, delay, misdelivery or error in transmission of any letter, e-mail, facsimile transmission or other electronic communication or if any document accepted by the Manager shall later prove to have been forged or otherwise defective or erroneous in any respect PROVIDED THAT this provision shall not apply to any such loss arising as a result of fraud on the part of the Manager.
8.3 Force Majeure
The Manager shall not be liable for any delay or other failure to perform any Services as a result of any cause beyond the Manager’s control and the time for performance shall be extended by the period of any such delay.