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Terms of Engagement

STANDARD TERMS OF ENGAGEMENT FOR LEGAL SERVICES

1       Introduction and Interpretation

1.1     Interpretation – In these terms of engagement the following words and expressions shall have the meanings given to them below:

“Business Day” means any day of the week not being a Saturday, a Sunday or a public holiday in Malta;

“Code of Ethics” means the code of ethics and conduct for advocates published by the Commission for the Administration of Justice in Malta, as amended from time to time;

“Contract” means these ToEs in conjunction with the LoE or, in the absence of an LoE, any other written communication by virtue of which you have confirmed instructions to us to provide you with legal services;

“Data Protection Law” means the General Data Protection Regulation EU 2016/679 as supplemented by the Data Protection Act (Chapter 586 Laws of Malta) together with other laws which relate to privacy and electronic communications, each as may be amended or substituted from time to time;

“Deliverables” has the meaning given to it in clause 3.2 of these ToEs;

“F&F”, “the firm”, “we”, “us”, “our” means Fenech & Fenech Advocates, a civil partnership established in terms of the laws of Malta;

“Fee” means the fee set out in the LoE or, in the absence of an LoE, in any other written communication by virtue of which you have confirmed instructions to us to provide you with legal services, or as otherwise calculated on the basis of the rates included therein;

“Force Majeure Event” means any circumstance not within our reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority including, without limitation, imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts; (h) non-performance by suppliers or subcontractors; and (i) interruption or failure of utility service;

“LoE” means the letter of engagement, if any, issued to you;

“Services” has the meaning assigned to it in the LoE or, in the absence of an LoE, the services which you have instructed, or will instruct, us to provide to you from time to time;

“ToEs” means these terms of engagement for legal services; and

“you”, “your”, “client” means the party or parties to the Contract (excluding F&F).

1.2     Any clause, schedule or other headings in these ToEs is included for convenience only and shall have no effect on the interpretation of the ToEs or the Contract.

1.3     A reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns.

1.4    A reference to a ‘person’ includes a natural person, a company or other corporate or unincorporated body (in each case, whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.5     A reference to a gender includes each other gender.

1.6    Words in the singular include the plural and vice versa.

1.7     Any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.

1.8     A reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form.

1.9    Where an LoE has been signed, should any of the clauses of these ToEs be inconsistent with the provisions of the LoE, the provisions of the LoE shall take precedence.

1.10   Commencement – The Contract shall commence on the earlier of (i) the date on which you sign the LoE, if any; and (ii) the commencement of the Services.  By your acceptance of the Services or any part thereof, you confirm that, to the extent that we receive instructions from you on behalf of an underlying client, you are duly authorised to act on behalf of such client, and to provide such instructions.

1.11    Amendment – These ToEs may be amended by us from time to time.  In such case, where Services are ongoing, we shall inform you accordingly in writing and, in the absence of any objection or communication relating to the proposed amendments within ten (10) Business Days from the date when you have been notified, you shall be deemed to have accepted and approved the updated ToEs.

2       Terms of Engagement

2.1     These ToEs contain the standard terms for our engagement as your legal advisors and form an integral part of the agreement we have with you relating to the provision of legal services by us to you. Please review these ToEs carefully and contact us promptly if you have any questions.

3       Services

3.1     Services – We shall perform the Services with the care expected from a professional organisation taking all reasonable steps to do so in a timely manner. All Services shall be provided subject to the Contract including these ToEs. By confirming instructions to proceed, you confirm that you have read the Contract and that you are in agreement with its provisions and that the Services as described therein are sufficient for the purposes requested of us. The Services are provided solely for your benefit and for the purpose set out in the Contract and F&F shall report only to you in relation to the Services.

3.2    Deliverables – Any documents (whether in paper or in electronic form) produced by us on your instructions or pursuant to the Services, including but not limited to reports, opinions, assessments, forms, schedules, notices or any advice prepared or issued by us to you (“Deliverables”) are produced solely for your benefit. You may not reproduce a Deliverable nor make the benefit of the Services available to any person and no person shall be entitled to rely on any Deliverables unless such person is a party to the Contract, except (i) as stated in the Contract, (ii) with our prior written consent on terms to be agreed, or (iii) where required by law or regulation or court order.

3.3    Liability – Reliance on the Services is exclusive to you and, where you have informed us that you are acting on behalf of an underlying client and you have provided evidence that you are duly authorised to act and give instructions on behalf of such client, the underlying client, and we do not accept liability towards anyone other than you and the underlying client in connection with our engagement. You agree to hold us harmless against and indemnify us for any liability (including legal costs) that we may incur in the event of a claim raised by a third party purporting to rely on the Services.

3.4    Use of Electronic Mail and Cloud Services – We may receive or send communications by e-mail (including attachments to such e-mail). You understand and accept all the risks associated with this form of communication including but not limited to security risks, delays caused by downtime, reliability of delivery, potential loss of confidentiality and privilege. We accept no responsibility or liability in respect of the risks associated with the use of e-mail. We also use third party service providers (including those that offer “cloud” services) in order to facilitate the provision of our Services. While we evaluate third party service providers to confirm their adherence to industry standard frameworks for information security and applicable data protection laws, we assume no responsibility for the security of the data or the provider’s security standards.

3.5    Changes – Either we or you may request a change to the Services or the Contract. Changes may affect the Fee and (other than amendments to these ToEs which are subject to clause 1.12 hereof) will become effective only when agreed in writing.

3.6    Extent of Services – In accepting to perform and conduct the Services, we are not responsible for nor will we attempt to detect and or in any way accept responsibility for detecting fraud or other wrongdoing unless specifically engaged to do so.

3.7    Time Schedule – Any time or date indicated for the production of a Deliverable is provided for planning purposes only.  Unless specifically agreed in writing as such, proposed times and dates for delivery shall be indicative only and shall not be deemed to constitute a legally binding deadline.

3.8    Oral advice and draft Deliverables – Reliance may only be made on final written Deliverables.  Oral advice and draft Deliverables are not to be relied upon as conclusive. If you wish to rely on something we have said or delivered to you other than in final form, please request a written confirmation of the said advice or a final version of the relevant Deliverable.

4      Your Responsibilities

4.1    Information – In order for us to provide Services to you in a proper and timely manner, you will ensure that any information given to us by you, or anyone else working with or for you (“your agents”), is (a) given promptly, (b) accurate and (c) complete. We shall not and have no obligation or responsibility to check or confirm any information given to us by you or your agents in relation to the Services. You accept full responsibility for the accuracy and completeness of all information provided to us. The provision of incorrect, inaccurate or incomplete information to us may result in the provision to you by us of Services or Deliverables that are not complete, correct or compliant. You agree that we will not be responsible or liable in the event that any information required by us for the purposes of the Services is incomplete or incorrect.

4.2    Changes to Shareholding or Control – You understand that the provision of the Services by us to you may be subject to compliance obligations incumbent upon us including the proper identification of the ultimate beneficiary of the Services.  Where applicable, therefore, you undertake to inform us immediately if you become aware of an intention to change the ultimate beneficiary of the Services and you will advise us in a timely manner before any such changes take place. You also confirm that you will procure the information required to identify the new proposed beneficiary of the Services and that we may require to be provided with appropriate due diligence documentation in order to carry on servicing you. You also confirm that you understand that we may suspend the provision of the Services until such time that the required due diligence documents are provided and that we shall also have the right to terminate the Contract, without further liability on our part, in the event that you fail to do so or if the proposed ultimate beneficiary of the Services falls outside our client acceptance policy or risk appetite.

5       Fees

5.1     Payment for services – You agree to pay us for our Services in a timely manner and as set out in the Contract. Any quote provided by us referring to a ‘fee estimate’ shall not be contractually binding and shall be provided for indicative purposes only and, therefore, in the event that our actual fees exceed the estimate, you will be required to pay the Fees as finally invoiced.

5.2    Basis of Fees – Unless designated as ‘capped fees’, fees quoted by us are minimum fees and additional time may be spent to provide the Service in question according to its complexity, urgency, inherent risk, novelty, required resources or specific expertise required. Fees may also be charged for time spent when travelling for the purpose of an engagement given that such time cannot be used productively for other purposes. Where a delay in provision of information, or the provision of incomplete or incorrect information, causes additional time or expenses to be incurred by us in delivering the Services, we reserve the right to charge for the additional time spent.

5.3    Expenses and disbursements – You will pay any reasonable expenses and disbursements that we incur in connection with the Services provided pursuant to the Contract. We shall seek to obtain written approval from you for any extraordinary disbursements. Disbursements will be included separately in our invoices to you.

5.4    Taxes – You will also pay all taxes, including VAT and any withholding taxes, that may be due in relation to the provision of our Services. You will pay us the full amount of any invoice, regardless of any deduction that you are required to make by law.

5.5    Invoices and payment – All invoices must be paid by not later than thirty (30) days from the date of issue thereof. If you fail to pay our statements in full on or before the due date we reserve the right to charge legal interest at the highest rate permitted by law. Without prejudice to clause 10.2 and our obligations relative to document retention in terms of applicable law, we reserve the right to retain all documents within our files in our possession until we have received payment in full of all amounts due. Furthermore, in litigation matters in which a money judgment is rendered in your favour, we will have a right to set off from all proceeds thereof the extent of any unpaid fees or expenses. We reserve the right to decline to continue to provide you with the Services if you fail to timely pay our invoices without making mutually acceptable arrangements for delayed payments. In the event that our appearance is entered of record in any court proceeding, your failure to pay shall constitute your express consent to our withdrawal of our appearance as your counsel in such proceedings.

5.6    Clients Account – Should you remit funds to be held to your account in our Clients Account, for instance, to be used by us to cover costs incurred by you or for your benefit e.g. fees to be paid to regulators, translation fees, and the like, please note that our firm charges a one-time fee, on receipt of the funds in question, of 1.25% of the quantum of funds received in our Clients Account – this fee is subject to a minimum fee but is also capped at a maximum fee. Please contact us for information about the applicable minimum and maximum fees that will apply in your regard.

6      Confidentiality & Conflicts

6.1    Confidential information – We are bound by duties of professional secrecy and will not disclose confidential information provided to us, except where we consider we are required to do so by law or regulation.

6.2    Referring to you and the Services – Subject to our duty of confidentiality, we may wish to refer to the Services we have performed for you for market research purposes conducted by professional legal research organisations such as Chambers & Partners, Legal 500 and others. You agree that we may do so.

6.3    Delivery – Any person who is delegated by you to forward to and collect from our office documents and records will be responsible for their safe custody and confidentiality whilst in transit.

6.4   Conflicts – Without detracting from our duty of confidentiality, so long as we act in accordance with the Code of Ethics, we may without your consent act for other persons or entities whose interests are adverse to your or your affiliates’ interests in matters not substantially related to our engagement by you. The adversity may be in litigation, legislative or regulatory matters, or in transactions or otherwise, all regardless of type, or importance of the matter.

7       Data protection

7.1     Processing of personal data is regulated in Malta by Data Protection Law.  During the course of our engagement, it will be necessary for you to disclose certain personal data to us in order that we may provide our Services to you.  This data may be required to comply with related legal and regulatory obligations and for other related purposes, including updating and maintaining client records, invoicing and credit control functions and analysis for management purposes. This will require us to obtain, use, disclose and otherwise process personal data about you and, if applicable, your organisation, its shareholders (or similar e.g. partners), members and/or officers and employees.

7.2    Data Protection Law contemplates various grounds which may render processing of personal data lawful, including where it is necessary for a contract, mandated by law, if it is in our or your legitimate interest (and does not override your privacy), and/or if you give us your consent. Our Privacy Policy (which can also be accessed at https://fenechlaw.com/privacy/ or provided to you in hard copy upon request) explains how we process personal data. In providing the Services we act as an independent data controller and are, therefore, responsible for complying with Data Protection Law in respect of any personal data we process. You acknowledge that you are also responsible for complying with Data Protection Law in respect of the personal data you process and, accordingly, where you disclose personal data to us you confirm and warrant that such disclosure is lawful, that where applicable and necessary you have obtained lawful consent from others for you to share their personal data including with the third parties to whom we disclose personal data, and that otherwise it does not contravene Data Protection Law.

7.3    Nothing within the Contract relieves you of your own direct responsibilities and liabilities under Data Protection Law. Terms used in this clause 7 bear the same meanings as are ascribed to them in Data Protection Law. This clause 7 does not apply to the extent that we act as a data processor for you, in which case specific data protection instructions are to be signed between us.

8       Liability

8.1    Specific types of loss – You agree that we will not be liable for the consequences of any loss or corruption of data from our systems except if such loss or corruption of data arises in consequences of fraud or of wilful misconduct on our part.

8.2    Our liability – Except in cases of fraud or wilful misconduct on our part, the aggregate liability of the firm and its partners, lawyers, agents and employees or any of them for any damages or losses shall be limited to the extent of the professional indemnity insurance cover of the firm. This is agreed as being a reasonable limitation of our liability for the purposes of, inter alia, Article 1138 of the Civil Code (Chapter 16 of the Laws of Malta) and shall represent our total aggregate liability towards you and any third party whosoever in relation to the Services.

8.3    Aggregate Liability – The limit of liability prescribed in clause 8.2 is our aggregate liability and, in the event that claims are made by more than one person in relation to the same matter or the Services, the amount of damages or other payment that may be calculated to be due in terms of the said limit of liability will be shared between such parties, and it is up to those parties to determine how this will be shared between them.

8.4   No claims against individuals – You agree to bring any claim in connection with the Services only against the firm, and not against any partner, lawyer, manager, employee, agent or other individual in his or her personal capacity.

8.5    Proportionality – If we are liable to you under the Contract and another person is also liable to you in respect of the same loss (save for your contractual arrangements with them), then (i) the compensation payable by us to you in respect of that loss will be reduced; (ii) the reduction will take into account the extent of the responsibility of that other person for the loss; and (iii) in determining the extent of the responsibility of that other person for the loss, no account will be taken of (a) any limit or exclusion placed on the amount that person will pay or (b) any shortfall in recovery from that person (for whatever reason).

9      Non-Solicitation

9.1    You shall not, during the validity of the Contract or within sixty (60) months of the termination of the Contract, directly or indirectly employ or solicit for employment any partner, lawyer, employee or other person engaged by the firm or any of its affiliated entities including the Fenlex group of companies (being Fenlex Group Holding Limited, a Maltese limited liability company, and its subsidiaries), or any other person who has been involved in any manner in the provision of the Services to you.  In default, you shall be subject to payment of pre-liquidated damages in the amount of fifty thousand Euro (EUR50,000) and you confirm that such amount is a fair representation of the materiality of the obligation assumed by you in terms of this provision and of the consequences of a breach of such obligation.

10     Document Retention

10.1   Policy – We may retain copies of all materials relevant to the Services provided, including any materials given to us by you or on your behalf, for such time as we may determine appropriate in the context of our legal obligations.

10.2 Release – Subject to our file retention and destruction policy, set out below, the file/s containing your documents and materials will be held by us until such time that they are requested by you upon termination of our engagement, subject to payment in full of our fees and expenses. Where you have appointed alternative legal counsel to continue to provide the Services, we will release your files upon written request from you or your legal counsel, subject to prior payment in full of our outstanding fees and expenses to date of termination.

10.3  Retention – At the conclusion of each matter, we will retain your legal files or a copy thereof for a period of five years after we close our files or for such longer period as we may be mandated to retain the same in terms of applicable law. At the expiration of such period, your legal files may be destroyed unless we are notified by you in writing to the contrary upon conclusion of our Services.  We may charge an additional fee to cover storage services provided in relation to your files.

11      Termination

11.1    General – We may terminate our representation for any reason consistent with the Code of Ethics or as authorised or required by applicable law. Save where we are prohibited by applicable laws or regulations, we will endeavour to identify in advance and discuss with you any situation that may lead to termination by us and, if withdrawal ever becomes necessary, we will give you written notice of termination. You may terminate our representation at any time by notifying us in writing. Our attorney-client relationship will be considered terminated upon the earlier of (i) the date identified in our notice of termination or withdrawal of Services, and (ii) our completion of the specific Services that you have engaged us to perform, or if open-ended services are agreed upon, when more than six (6) months have elapsed from the last time you requested and we furnished any billable Services to you. If you request us to provide Services after this time, and we accept, a new Contract will apply to those new Services, and, if no new Contract has been agreed, the last applicable Contract as updated by the most recent ToEs then applicable will apply.  The fact that we may inform you from time to time of developments in the law which may be of interest to you, by newsletter or otherwise, should not be understood as a continuation or renewal of the Contract. Moreover, we have no obligation to inform you of such developments in the law unless we are engaged in writing to do so.

11.2   Termination for Default – We may terminate our Contract immediately, by giving written notice to you to be effective immediately if (i) you are in material breach of the Contract, which shall be deemed to include your failure to pay our invoices by their due date, (ii) you are or appear likely to be unable to pay your debts or become insolvent, (iii) in the event that a conflict of interest is identified and we fail to agree on arrangements that would safeguard confidentiality and objectivity to our mutual satisfaction, or (iv) the continued performance of the Service/s (including the application of any Fee arrangements) may breach a legal or regulatory requirement.

11.3   Fees payable on termination – You agree to pay us for all Services performed up until the date of termination for any reason whatsoever. Where there is a fixed Fee for Services, you agree to pay us for the Services that we have performed on the basis of the time spent at our then current hourly rates, up to the amount of the fixed Fee, unless we have agreed otherwise.

12     Law and Jurisdiction

12.1   Governing law and jurisdiction – The Contract, including these ToEs, and any dispute arising therefrom shall be governed by Maltese law and shall be subject to the exclusive jurisdiction of the Maltese Courts.

13     General

13.1   Due Diligence – The Prevention of Money Laundering Act (Chapter 373 of the Laws of Malta), the Regulations and Implementing Procedures issued thereunder or in terms thereof, as well as our own internal procedures, may require us to undertake customer due diligence checks prior to client engagement and at certain intervals for the purposes of keeping our records up to date. As a pre-condition to our providing Services to you, we may require you to provide to us certain information and documents (originals or certified copies), whether in your regard and/or in respect of any underlying client and your respective direct and/or indirect shareholder, beneficial owner, director, associate, or agent, which will be specified separately. This information and these documents must be provided to us or our compliance services provider immediately upon request (unless specified otherwise) failing which we may have to cease to represent you or to provide any Services to you.  We may also require such customer due diligence to be updated from time to time.  We reserve the right to terminate the Contract at any time with immediate effect by giving written notice to this effect should any customer due diligence requests not be complied with to our satisfaction within a reasonable time or if we deem this to be necessary in the context of our anti-money laundering obligations.

By accepting our Services, you agree and accept that our firm may, in compliance with our obligations as outlined in this clause 13.1 provide information to relevant regulatory authorities, including by filing suspicious transaction reports, suspicious activity reports, terrorism financing reports, politically exposed person reports or otherwise,  based on our assessment of the client, its direct and/or indirect shareholders, beneficial owners, directors, associates, or agent or their respective activities and that any such report or disclosure will not constitute a breach of confidentiality or breach of privilege on our firm’s part or on the part of any partner or lawyer within the firm.  You also approve and accept that we may be required to disclose and share information as aforesaid, which information may be protected in terms of Data Protection Law or otherwise. To the fullest extent permitted by law, we shall not be liable to you or any other person whosoever for any consequences which may result from or in connection with any such report or disclosure made by our firm.

13.2 The Tax Intermediaries Directive and Mandatory Disclosure of Tax Arrangements – Council Directive 2011/16/EU, as amended by Council Directive 2018/822/EU (“DAC 6”), requires us, where we are intermediaries as defined therein, to disclose details of cross-border arrangements (defined therein in very broad terms) which satisfy one or more hallmarks intended to capture potentially aggressive tax arrangements set out therein.  When required to do so in terms of DAC 6, our firm shall accordingly make the appropriate disclosures to the Maltese tax authorities, which authorities will then make the information so disclosed available to all other EU Member States and the EU Commission which has limited access.

We will be considered to be an intermediary for the purposes of DAC 6 where the services we provide to you (or to any intermediary providing services to you) consist of advice and/or assistance with regard to the design of, making any cross-border arrangement available for implementation, organizing or implementing any such cross-border arrangement, which satisfies one or more of the hallmarks set out in DAC 6.  Whilst DAC 6 is an EU Directive, it is highly likely that its interpretation across EU Member States will differ. Determining whether a cross-border arrangement is disclosable or not is at the sole judgement of the intermediary, which judgement may be subjective.

Should other intermediaries within the EU, being engaged by you or by our firm acting on your instruction to provide assistance and/or advice with respect to a reportable cross-border arrangement involving you (an “EU Intermediary”), we may be required to share information (regarding the transaction/arrangement and you and the group, where applicable) in relation to the cross-border arrangement concerned with said EU Intermediaries to enable them to assess whether they are required to make a disclosure on their own account and to enable them to make said disclosure. Accordingly, by accepting our Services, you agree and accept that our firm may provide information to any such EU Intermediaries and that we may make disclosures as required in terms of DAC 6, based on our assessment or that of other intermediaries, and that such disclosures will not constitute a breach of confidentiality or breach of privilege on our firm’s part or on the part of any partner or lawyer within the firm.  You also approve and accept that we may be required to disclose and share information as aforesaid, which information may be protected in terms of Data Protection Laws. To the fullest extent permitted by law, we are not liable to you or any associated enterprise, as defined in terms of DAC 6, for any consequences which may result from or in connection with any such disclosure made by our firm.

No provision herein is to be construed as a condition of confidentiality within the meaning of hallmark A.1, DAC 6.

13.3   Force majeure – We shall not be liable to you for any delay or failure to provide Services pursuant to this Contract to the extent that any such delay or failure arises as a result of a Force Majeure Event. In the event of any such occurrence, we shall notify you as soon as reasonably practicable and we shall discuss appropriate remedial action in good faith.

13.4 Joint and Several Liability – Where we are engaged by more than one party, all engaging parties shall be jointly and severally liable for the due and punctual performance of all obligations under the Contract.

13.5   Assignment – You may not assign the Contract in whole or in part without our prior written consent.

13.6 Survival – The provisions of the Contract that expressly or by implication are intended to survive its termination or expiry will survive and continue to be binding on the relevant party.

13.7   Language – The languages we do business in are English and Maltese. Any documents that are provided to us in a language other than English or Maltese may need to be translated at your cost.

13.8 Quality of service – It is our intention to provide you at all times with a high-quality service to meet your needs. If at any time you would like to discuss with us how our services to you could be improved or if you are dissatisfied with any aspect of our services, please raise the matter immediately with the partner responsible for the Services being provided to you. We undertake to look into any concern you may have in this regard carefully and promptly and to do all we can to resolve this with you.

13.9  Further Recourse – Should your concern not be resolved in terms of clause 13.8 of these ToEs, you may contact the Managing Partner via e-mail on managingpartner@fenechlaw.com or in writing addressed to, The Managing Partner, Fenech & Fenech Advocates at 198, Old Bakery Street, Valletta, Malta or via telephone on +356 21241232.

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