General Terms of Business

 

1. INTRODUCTION AND DEFINITIONS

1.1. These terms of business ("Terms") should be read and construed in conjunction with the Engagement Letter and/or the Service Agreement. Where there is any inconsistency between the Term and the Engagement Letter and/or the Service Agreement, the latter will prevail.

1.2. In the Terms, the following words and phrases shall (where the context admits) have the following meanings:

"DIACRON" means the global tax consulting firm known as DIACRON GROUP, operating through various separate and distinct legal entities (including the DIACRON Entity) further information in respect of these entities can be found at the Legal Notices page;

"DIACRON Entity", "we" or "us" means the relevant entity of DIACRON specified in numbered paragraph 1 of the Engagement Letter (and words such as "our" shall be interpreted accordingly);

"DIACRON GROUP" means the alliance of international tax consulting practices known as DIACRON GROUP, comprising members which are separate and distinct legal entities that are affiliated to entities of DIACRON but are not, themselves, entities of it further information in respect of these members can be found at the Legal Notices page;

"DIACRON Person(s)" means each and all of the following and each and all of their respective members, partners, directors, employees, representatives and agents (as the case may be):

- The DIACRON Entity;

- Any other entity of DIACRON;

- Any entity of DIACRON GROUP; and

- Anybody or entity controlled or owned by the DIACRON Entity, any other entity of DIACRON, any entity of DIACRON GROUP or any of their respective members, partners, directors, employees, representatives or agents (as the case may be);

"Engagement Letter" means a letter or other document (however described) enclosing or referring to the Terms and recording our engagement by you for the purpose of delivering the Services together with and duly varied by any other letter, document or terms that (with the agreement of the Parties) supplement or otherwise vary the provisions of the first mentioned letter or other document;

"Parties" means you and the DIACRON Entity;

"Services" means the services provided or to be provided by us in accordance with the Services Agreement;

"Services Agreement" means the contract between you and the DIACRON Entity, the provisions of which are recorded in the Terms and the Engagement Letter and/or in separate Service Agreement; and

"You" means the client(s) specified in numbered paragraph 1 of the Engagement Letter (and words such as "your" shall be interpreted accordingly).

1.3. Reference to any statute or statutory provision includes a reference to that statute or provision as from time to time amended, extended, re-enacted or consolidated and to all statutory instruments or orders made under it (as from time to time amended, extended, re-enacted or consolidated).

1.4. Words denoting the singular number only, include the plural and vice versa.

1.5. Words denoting the masculine gender include the feminine gender and vice versa.

2. WORKING WITH YOU

2.1. To achieve your objectives, it is imperative that you and the DIACRON Entity work together as a team and that any changes in your objectives are communicated promptly and clearly to DIACRON.

2.2. We will rely on you to provide us, promptly, with all the up to date, accurate and complete information necessary for us to provide the Services in accordance with the Services Agreement. You should inform us, immediately upon becoming aware, of any changes to information already supplied or new information that might impact upon our provision of the Services.

2.3. If you would like to make any suggestions as to how our service to you could be improved or, if you are dissatisfied with our service, please contact the person specified for this purpose in the Engagement Letter and/or in the Service Agreement. We operate a complaints procedure, a copy of which is available upon request. If, for any reason, we are unable to resolve the problem, we will advise you as to the availability of any complaints and redress scheme that may be operated by an appropriate regulatory body.

3. OUR SERVICES

3.1. Subject as follows, the scope of the Services is as described in the Engagement Letter and/or in the Service Agreement. We shall not be responsible for providing any advice or other service outside that scope.

3.2. We will use all reasonable skill and care in the provision of the Services.

3.3. It is possible that relevant changes in law or regulation or its proper interpretation or application may occur after provision of the Services or any aspect of them. Unless we have specifically agreed to the contrary in the Engagement Letter and/or in the Service Agreement, we shall not be obliged to provide any advice in respect of such changes or their implications nor to revise, amend or qualify the Services or any aspect of them that have already been provided when such changes occurred.

3.4. The Services are provided to and for the benefit of you alone and for the purposes that you have communicated to us. They cannot be used or relied upon by any other person or for any other purpose. Accordingly, you agree that you will not disclose any aspect of the Services to any other person nor will you seek to rely on the same for any other purpose.

4. PEOPLE WORKING FOR YOU

4.1. Subject as follows, the Services will be provided by us through the persons specified in the Engagement Letter and/or in the Service Agreement or by such other persons as we shall notify to you. The professional qualifications (if appropriate) of the persons referred to in clause 4.1 are as specified in the Engagement Letter and/or in the Service Agreement and any subsequent notification.

4.2. From time to time and in order to enable the Services to be provided in a timely and cost-effective manner, tasks may be delegated to suitably experienced persons other than those referred to in clause 4.1. Whilst we will ensure that tasks are only delegated to individuals who possess the necessary skills and experience to undertake such tasks in a competent and professional manner, such individuals may not possess a professional CPA qualification or any particular professional accountancy qualification.

4.3. In appropriate circumstances, we may use other members of DIACRON and/or members of DIACRON GROUP to assist us in providing the Services. Irrespective of whether, in connection with the provision of the Services, you have any direct contact with any other members of DIACRON and/or members of DIACRON GROUP and further irrespective of whether any other members of DIACRON and/or members of DIACRON GROUP are specified in the Engagement Letter and/or in the Service Agreement or are otherwise notified to you, we remain responsible for the provision of the Services and any other members of DIACRON and/or DIACRON GROUP who assist us in providing the Services do so as our agent

In clause 4.3, references to other members of DIACRON and/or members of DIACRON GROUP shall be construed as including references to their respective members, partners, directors, employees, representatives and agents (as the case may be).

4.4. It may be necessary, in connection with the provision of the Services, for us to instruct or for us to advise you to instruct experts outside of DIACRON GROUP (including, without limitation, law firms, notaries, specialist counsel and accountants). We will discuss any such instructions and the likely costs with you at the appropriate time.

5. CONFLICTS OF INTEREST AND CONFIDENTIAL INFORMATION

Subject to any applicable legal, regulatory or other professional restrictions or requirements, clauses 5.1 to 5.3 will apply:

5.1. We will not act for any other client in relation to the subject matter of the Services, where the interests of that other client in the subject matter of the Services are adverse to your own, unless you have agreed that we may do so. Subject to this and subject further to any express agreement that we may enter into with you, DIACRON Persons shall be free to act for any other client in respect of any matter (whether or not involving litigation or similar proceedings), even if the interests of the other client are or become adverse to your own and you confirm your consent (to the extent such consent is required under any applicable legal, regulatory or other professional restrictions or requirements in any jurisdiction) to such concurrent representation.

5.2. Subject as follows, we will treat all information which is provided to us by you or on your behalf for the purposes of providing the Services as strictly confidential and we will not use or disclose this information except for the purposes of providing the Services (which you acknowledge may require us to disclose information to third parties, including your other advisers).

This obligation will not apply to any information which is in or comes into the public domain otherwise than as a result of a breach by us of the Engagement Letter and/or the Service Agreement, nor does it apply to information which is already lawfully in our possession at the time it is communicated to us.

5.3. Notwithstanding clause 5.2, we will be entitled to disclose confidential information relating to or belonging to you to:

5.3.1. Our professional indemnity insurers;

5.3.2. Our auditors and any other professional advisers appointed by us from time to time;

5.3.3. Any other third party to the extent that this is required by law or regulation; and

5.3.4. DIACRON Persons for the purpose of conflict checking and other bona fide purposes of some or all of the entities comprising DIACRON and/or DIACRON Group.

6. FEES

6.1 Basis of fees

Our fees will be charged on the basis set out in the Engagement Letter and/or in the Service Agreement. In cases where our charges are based on hourly rates, and the rates are not specifically indicated in the Engagement Letter and/or in the Service Agreement, the said rates shall not be less than 250 €/h and are subject to review from time to time and we will keep you informed of any changes which are made.

6.2. Fee estimates

Any fee estimate given by us will be given in good faith but will not be contractually binding unless the Engagement Letter and/or the Service Agreement expressly provides that it shall be. It will be subject to any stated exceptions, assumptions and any other factors and, wherever it is practicable to do so, we will notify you if it is likely to be exceeded.

6.3. Other Charges

We will charge for expenditure (such as counsel's fees, third party legal fees, enquiry agent's fees, property search/enquiry fees, court fees, valuation fees, courier charges, notaries, translators, travel expenses and photocopying charges) ("Disbursements and Expenses") that have been incurred on your behalf to carry out the Services.

6.4. Value Added Tax ("VAT")

In certain countries, it is necessary to charge VAT or a similar sales tax. Where applicable we will add VAT (or other applicable tax) at the appropriate, prevailing rate to our fees and (where necessary) Disbursements and Expenses. All estimates of, or references to, fees, Disbursements and Expenses are exclusive of VAT (or other applicable tax).

.6.5 Payment on account

We may, at any time, ask you to pay money on account of anticipated fees, Disbursements and Expenses. Subject to any applicable legal, regulatory or other professional restrictions or requirements, we may decline to act for you or suspend or terminate the provision of the Services if you fail to make such a payment upon request.

6.6. Billing and settlement

Subject as follows and unless otherwise stated in the Engagement Letter and/or in the Service Agreement, we will submit invoices on a monthly basis. Disbursements and Expenses only bills may be delivered at the same time as or at any time after the expenditure has been incurred.

All invoices will be expressed in the currency specified in the Engagement Letter and/or in the Service Agreement (or, if no currency is specified, in Euro) and are payable, in that currency, on delivery (or such other date as is stated in the Engagement Letter and/or in the Service Agreement). Any query on an invoice must be raised within 10 days of delivery. If an invoice is not paid within 30 days of the due date, we reserve the right to charge interest from the date of the invoice at three per cent above the prevailing base lending rate in the United Kingdom of Barclays Bank PLC. We also reserve the right (subject to any applicable legal, regulatory or other professional restrictions or requirements) to suspend or terminate the provision of the Services if any invoice is not paid within 30 days of the due date (although we would not do so without consulting you first).

Subject to any applicable legal, regulatory or other professional restrictions or requirements, we may apply any money that we are holding for you (whether on account or otherwise) towards the settlement of any outstanding invoice.

Subject, also, to any applicable legal, regulatory or other professional restrictions or requirements, we may retain deeds, documents, monies and other items held for you until our fees and Disbursements and Expenses have been paid in full.

7. ELECTRONIC COMMUNICATION

7.1. Email

You agree that we may communicate with you by email sent, without encryption, over the internet. We shall not be responsible for any loss or damage arising from the unauthorized interception, re-direction, copying or reading of emails, including any attachments, nor shall we be responsible for the effect on any computer system (or any loss or damage arising from any such effect) of any emails, attachments or viruses which may be transmitted by this means (save to the extent that this is caused by our negligence or wilful default).

7.2. Online deal rooms / data rooms

From time to time and with your agreement, we may use internet-based document management and retrieval tools in connection with the provision of the Services. You agree that any use of these facilities is subject to specific, additional terms and conditions which we will provide at the appropriate time.

8. RETENTION AND DEPOSIT OF DOCUMENTS

8.1. It is our policy to archive files and documents for a period of at least three years after they are regarded as closed by us. We accept no responsibility or liability, however, for any loss or damage caused by our failure to retain files and/or documents for any period after such closure and we are authorised by you to destroy files and/or documents after such time. We will not destroy documents that we agree to hold in safe custody.

8.2. You agree that we shall be entitled to retain and use for our own purposes copies of all files and documents created and received by us (including any documents recording studies, models, presentations, analysis, manuals, opinions of counsel) during the provision of the Services

9. INTELLECTUAL PROPERTY RIGHTS

We retain all copyright, database rights and other intellectual property and proprietary rights in all works and other things developed, designed, generated or created by us in the course of providing the Services including systems, methodologies, software, data, know-how, documents and working papers. For the avoidance of doubt, we retain all copyright, database rights and other intellectual property and proprietary rights in all reports, written advice, documents, data and all other materials provided by us to you.

10. LIABILITY

Subject to any applicable and mandatory legal, regulatory or other professional restrictions or requirements clauses 10.1 to 10.5 will apply.

10.1. We do not accept liability, in respect of the Services, in favour of anyone other than you.

10.2. Notwithstanding the references to DIACRON Persons in clause 10, claims for loss or damage arising from or in connection with the Services will only be made against the DIACRON Entity and not against any other DIACRON Person or any other entity of DIACRON and DIACRON GROUP.

10.3. Subject to clause 10.5, the liability of the DIACRON Entity (and/or any other DIACRON Persons) for loss or damage arising from or in connection with the Services shall be limited to such proportion of the loss and damage as is just and equitable having regard to the extent of your own responsibility for the loss and damage and that of any other party (regardless of any inability on your part to enforce a claim against such other party due to limitation, a lack of means, reliance by that other party on an exclusion or limitation of liability or otherwise).

10.4. Neither the DIACRON Entity, nor any other DIACRON Person, shall be liable for Loss of profits or any indirect or consequential loss or damage arising from or in connection with the Services and neither the DIACRON Entity, nor any other DIACRON Person, shall be liable for any loss or damage arising from or in connection with any default or other act or on the part of any bank or other financial institution with which money has been deposited in connection with the Services or otherwise on your behalf or at your direction.

10.5. The aggregate liability of the DIACRON Entity (and/or any other DIACRON Persons) in any circumstances whatsoever and however caused (including as a result of our negligence), for loss or damage arising from or in connection with the Services shall be limited to the sum specified in the Engagement Letter and/or in the Service Agreement or, if no sum is specified, shall be not higher than the sum of any and all amounts due to DIACRON under the Engagement Letter and/or the Service Agreement.

11. DATA PROTECTION AND CLIENT IDENTIFICATION

11.1. Data protection

In connection with the delivery of the Services, we will act as data controllers, in the sense that, subject to our legal and regulatory obligations, we will process personal data in such manner and for such purposes as we see fit. We will not process personal data on your behalf and at your direction. Where appropriate, we, ourselves, may appoint sub-contractor data processors such as tracing and collection agents who will process personal data on our behalf and at our direction.

We will take appropriate technical and organizational measures which are designed to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

In the case of clients who are individuals, we may process/disclose your personal data in connection with:

11.1.1. The carrying out of credit checks and the taking up of credit references;

11.1.2. Client identification procedures;

11.1.3. Conflict of interest checks; and

11.1.4. The delivery of the Services (including where appropriate the transfer of such personal data outside the European Union) and you consent to our doing so.

11.2. Publicity

From time to time we prepare marketing materials and provide information to publications concerning the identity of our clients. You authorise us to disclose your company name and use your logo for these limited purposes. Far the avoidance of doubt, no confidential information will be disclosed without your prior approval.

11.3. Client identification

For the purpose of our client identification procedures, we may use an electronic identification provider to confirm the identity of individual clients and/or directors or other officers and/or owners of non-individual clients. We will hold such confirmation for at least so long as we may be required to do so in order to comply with our regulatory obligations. This information will not be shared with anyone other than a DIACRON Person.

12. ANTI BRIBERY AND CORRUPTION

DIACRON has a strict anti-Bribery and Corruption policy (details of which are available on request). DIACRON will not directly or indirectly engage in Bribery or Corruption in any form and we have a zero-tolerance approach to breach whether it involves private individuals or public officials. DIACRON will never accept, solicit, agree to receive, promise, offer or give a Bribe, Facilitation Payment, Kickback or other improper payment.

All of our activities are managed in full compliance with this policy and with all applicable legal and regulatory Anti-Bribery and Corruption obligations. We expect our clients and other business partners to have similar policies which apply to all dealings with, on behalf of, or involving DIACRON.

If any breach of this clause is suspected or known you must notify us immediately in writing.

For the purposes of this clause 12:

"Bribe" means a financial or other advantage, intended to induce a person to give improper assistance in breach of their duty, or to otherwise improperly influence someone with the underlying purpose of obtaining or retaining business, or an advantage in the course of business;

"Bribery" means the receiving, offering or giving of a Bribe;

"Corruption" means the misuse of entrusted power or breach of duty for personal gain;

"Facilitation Payment" means small bribes, whether paid in cash or kind, made to government or public officials to speed up routine administrative processes or other actions, also known as "grease payments"; and

"Kickback" means a form of bribery in which a percentage of the revenues from a contract or other financial award is illicitly returned to the person awarding that contract or benefit.

13. TERMINATION

13.1. Subject to any applicable legal, regulatory or other professional restrictions or requirements, we reserve the right to cease to act on your behalf if we consider this appropriate (for example, in circumstances where you are in breach of the terms of the Engagement Letter and/or the Service Agreement or you are subject to proceedings or the existence of adverse interests renders it, in our discretion, inappropriate for us to continue to act for you). If we propose to exercise this right, we shall, so far as practicable, consult with you and (subject to you paying our fees and disbursements in relation to the same) provide reasonable assistance in transferring the matter to another firm. We will charge you for all work completed up to the date of us ceasing to act.

13.2. Without prejudice to the generality of clause 13.1, we may cease to act for you in circumstances where, in our discretion, we determine that the requirements of our client identification procedures have not been satisfied and, in the event that we exercise such discretion and cease to act for you on that basis, no business relationship shall have been, or be deemed to have been, established between ourselves.

14. GENERAL

14.2. Applicable law and jurisdiction

The Services Agreement will be governed by and interpreted in accordance with the law of the jurisdiction specified in the Engagement Letter and/or in the Service Agreement (or, if unspecified, Italian law) and you irrevocably agree that the courts of the jurisdiction specified in the Engagement Letter and/or in the Service Agreement shall have jurisdiction over any dispute which may arise out of or in connection with the Services Agreement (or, if unspecified, the courts of Milan in Italy shall have exclusive jurisdiction).

14.2. Force majeure

Neither you nor the DIACRON Entity can be held liable for any delay or failure to fulfil our respective obligations under the Engagement Letter and/or the Service Agreement as a result of events beyond our reasonable control. Such events include, but are not limited to, fire, flood, acts and regulations of any governmental or supranational authority, war, acts of terrorism, riots, strikes, lockouts and industrial disputes.

14.3. Notices

Any notice or other communication to be given under the Services Agreement shall be given in writing and delivered by registered mail to, or by band at, the addresses of the Parties appearing in the Engagement Letter and/or in the Service Agreement (or such other address as may have been notified in writing). Notices shall be deemed to be given in the case of delivery personally, on delivery, and in the case of posting (in the absence of earlier receipt), 48 hours after posting.

14.4. Entire agreement

The Services Agreement, as well as the Engagement Letter, jointly with this General Term of Business, constitutes the entire agreement between the Parties with respect to the Services.

Subject to any applicable legal, regulatory or other professional restrictions or requirements, the DIACRON Entity and you both acknowledge that (respectively) we and you have not entered into this Services Agreement on the basis of, and have not relied upon, any statement, representation, warranty or other provision, except those expressly included in this Services Agreement.