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Terms of Engagement

1. Introduction

1.1. These terms of engagement (the “Terms”) are provided to confirm the basis of Bransens’ engagement to indicate to the person instructing us or on whose behalf we are instructed (“Clients”) as clearly as possible the standard of service you can expect from us and the manner in which we shall charge for the work we perform on your behalf.

1.2. These Terms shall govern the engagement unless otherwise agreed and varied in writing by a partner of Bransens. If there is any conflict between any engagement letter and these terms the engagement letter will prevail.

1.3. When “we”, “us”, “our”, ‘the Firm” are used in these Terms they mean Bransens.

1.4. When “ you” or “your” are used in these Terms, they refer to the Client.
 

2. Work Carried Out On Your Behalf

2.1. We will provide our services with reasonable care and skill.

2.2. If general advice is provided to you, the applicability of the advice will depend on the particular circumstances. In relation to any specific transaction specific advice on that transaction should always be sought and material information provided to us.

2.3. We rely upon the accuracy of information provided to us by you or others on your behalf. We will not seek to check or verify the information and you acknowledge that we shall be entitled to rely upon this information provided by you or on your behalf.

2.4. Our legal advice to you is to be used for the purposes for which we are engaged and we will not be responsible for its use for different purposes or in a different context.

2.5. By virtue of our engagement in this matter, we shall be authorized to take such action on your behalf as we deem advisable and as you may instruct either orally or in writing.

2.6. In the course of so acting we shall be authorized to employ such agents or experts as we may deem necessary and they shall in turn be authorized to incur such disbursements as we deem necessary.

2.7. The person(s) who will carry out all or the majority of the work on your matter is or will be communicated to you by email. We reserve the right however to have additional or different attorneys work on or deal with your matter if circumstances so require.

2.8. In some circumstances, it may be appropriate for some work to be carried out by other members of staff, such as paralegal, secretarial or support staff. This allows us to provide a more efficient service to you, and also to charge you the appropriate amount for the work done. All work by such staff is carried out under the supervision of an attorney. Overall supervision of the matter is undertaken by a partner.

2.9. We are not and do not hold ourselves out as being experts in or having knowledge of the laws or regulations of any jurisdiction other than the Cayman Islands and only advise on the laws of the Cayman Islands.
 

3. Your Responsibility

3.1. It is your responsibility to provide us with complete and accurate instructions and all necessary information in a timely manner. We will not be responsible for any delay or indirect consequences which may arise from any delay or failure by you to do so.

3.2. You are responsible for any commercial decisions that you make.
 

4. Charges and Expenses

4.1. Unless we have agreed to charge on a time spent basis or a fixed fees basis, our fees will be calculated on what we regard as being a fair and reasonable basis. We are entitled to take into account the complexity of the issues involved in the matter, the speed at which action must be taken, the expertise or specialist knowledge which the matter requires, the number and importance of the documents prepared or perused, without regard to length, the place and circumstances in which the matter or any part thereof is transacted and, if appropriate, the value of the property or subject matter involved.

4.2. The time we spend will include (but not be limited to) the following types of activities: meetings with you, members of your staff, experts and others if necessary; drafting documents; attending court; considering, preparing and working on various documents; correspondence; time spent travelling in relation to the matter and making and receiving telephone calls. Our rates may be adjusted upwards if, for example, the matter becomes more complex than expected or has to be carried out in an emergency or outside of usual office hours.

4.3. Where fixed fees are agreed, we can charge for work carried out and expenses incurred up to the limit without us needing to refer to you for approval to carry out the work. If it appears that the time spent on the matter exceeds or will exceed the fixed fees agreed, we will normally inform you and reserve the right to charge additional fees for the work done.

4.4. If we need to carry out work outside of the scope of the engagement, we will usually provide you with the estimated cost of carrying it out. This can arise because of unexpected difficulties, a change in your requirements or a change in circumstances during the course of the matter (such as unexpected action or inaction by the other party or parties involved in the matter).

4.5. We will normally ask you to pay certain sums on retainer (i.e. in advance of us carrying out work and incurring expenses on your behalf). These sums will be applied towards satisfaction of the invoices we will send to you from time to time. If such funds are not provided promptly we reserve the right not to carry out future work in the matter until funds are received. Please note that you be asked to make additional deposits as the matter progresses. The total charges and expenses are likely to exceed the advance payments you have made to us.

4.6. Where we receive in our client account funds to which you may be or become entitled arising out of or in connection with the matter for which we are engaged, we reserve the right to apply such sums in satisfaction of any fees and disbursements which you owe to us.

4.7. If the matter is not concluded for any reason, we will still charge for our fees for all the work that has been done up to that date and the disbursements and expenses we incur on your behalf, and no discount will be granted on the basis of the premature conclusion of the matter.

4.8. We reserve the right to clear any cheques or other forms of payment you provide to us before carrying out any work on any aspect of your case.

4.9. We will not pay interest on any payments made by you and held on account unless required by Cayman law.

4.10. Please note that the amount of costs in a litigation matter (i.e. fees plus disbursements) which you will have to pay may be greater than the amount you can recover from another party to the matter.
 

5. Disbursements

5.1. We will bill for expenses we incur on your behalf (disbursements). These include a variety of incorporation fees, fees for reports, barrister’s fees, filing fees, courier fees, travel-related costs and other fees incurred on your behalf as soon as they are incurred and irrespective of whether at that time they had actually been paid by us.

5.2. We will bill for expenses generated by Bransens, on a provision basis and /or as a fixed percentage of the total fees of 3%, as appropriate. We may bill for telephone charges, facsimile charges, photocopying, printing, stationery, compliance charges and other miscellaneous charges. These charges and costs may include overhead charges. We also reserve the right to charge for secretarial overtime costs where necessary to deal with your matter expeditiously.
 

6. Invoices

6.1. We will send you invoices for our charges and expenses on a regular basis during the course of the matter.

6.2. You should pay our invoices within thirty (30) days of receipt. We will be entitled to charge you interest at 1% per month from 30 days from the date of the invoice. Interest is charged on a daily basis.

6.3. If you have any queries about any invoice you receive please contact us immediately.
 

7. Electronic Mail

We may correspond with you via email unless you advise us in writing that you do not wish for us to do so. Email will be treated as written correspondence and we are entitled to assume that the purported sender of an email is the actual sender and that any express or implied approval authority referred to in an email has been validly given. You consent to us monitoring and reading any email correspondence traveling between you and any e-mail recipient employed by Bransens. Although we will take the reasonable safeguards to protect the information transmitted, we cannot guarantee that emails will be free from viruses and cannot guarantee the security or confidentiality of them.
 

8. Data Protection

8.1. You agree and consent to us holding and processing in any form, and transferring, data we collect in relation to you for the purposes of providing legal services. Our processing of your personal information will be done in accordance with data protection laws in Cayman and our privacy policy a copy of which may be found on our website or requested from compliance@bransens.com.

8.2. For purposes related to the protection of data, the preservation of the integrity of email communication and for facilitating business continuity, as a matter of management practice incoming and outgoing emails including attachments may not necessarily be retained exclusively within the offices of Bransens. By instructing us you agree to have consented to such management practice. (Subject to the foregoing and to the proviso set out in Clause 9 below) no information concerning you or the matter which we are dealing with on your behalf will be disclosed or passed on to a third party without your specific authority.
 

9. Confidentiality, Money Laundering and Proceeds of Crime

Attorneys are under a professional and legal obligation to keep the affairs of clients confidential. This obligation, however, is subject to a statutory exception: legislation on money laundering and terrorist financing has placed attorneys under a legal duty in certain circumstances to disclose information to the Financial Reporting Authority of the Cayman Islands. Where an attorney knows or suspects that a transaction on behalf of a client involves money laundering, the attorney will be required to make a suspicious activity report (“SAR”). In circumstances where a SAR is filed, we will not be able to inform you of same, nor will be able to provide you with the reasons for our suspicion or the SAR, because the law expressly prohibits “tipping-off.”
 

10. Liability

10.1. You acknowledge that no claim for losses, damages costs or expenses (“Losses”) may be brought against Bransens, its partners, members, officers or employees in the following circumstances:

10.1.1. Where Losses are due to the provision of false misleading or incomplete information or documents;

10.1.2. Where Losses are due to acts or omissions of any person other than Bransens, its partners, members or officers or employees; or

10.1.3. Where you suffer any Losses for which we are jointly and severally liable with any third party or third parties, the extent to which such Losses shall be recoverable by you from us, as opposed to the third party, shall be limited so as to be in proportion to our contribution to the overall fault for such losses, as agreed between all of the parties, or in the absence of agreement as finally determined by the Courts in the Cayman Islands.

10.2. You acknowledge and agree that if you wish to make a claim relating to or in connection with the services provided by us, the claim can only be brought against Bransens and not against the individual partners, members, officers or employees. In this context 'claim' means any claim whether arising out of this agreement or otherwise, and whether such claim is in contract, tort, breach of trust or on any other basis.

10.3. The maximum, aggregate limit of liability of this firm, its partners, officers or employees for loss, or damage, directly or indirectly, for breach of contract, breach of trust, negligence or otherwise (other than fraud) (including Costs) shall be $500,000.00 for any one transaction or matter or series of connected transactions or matters. You agree that you have given proper consideration to this limit and accept that it is reasonable in all the circumstances.

10.4. Bransens shall not be liable for any consequential, special, indirect or exemplary damages, costs or losses attributable to lost profits or opportunities suffered or incurred by you.
 

11. The Charges and Expenses of Another Party

11.1. You are responsible for paying our charges and the expenses incurred on your behalf in all circumstances.

11.2. If you succeed in court proceedings or through a form of settlement another party or person:

11.2.1. may not be required to pay our charges and expenses instead of you; or

11.2.2. may be required to pay only a part of such charges and expenses.

11.3. Although another party may be required to pay all or part of our charges or expenses incurred they may refuse to pay or not have the funds to pay.

11.4. In all these circumstances you will be responsible for paying any or all of our charges and expenses incurred.

11.5. You will be responsible to pay the charges and expenses of trying to recover any charges and expenses that the court orders the other party or person to pay.

11.6. A court may also require you to pay the legal charges and expenses incurred by another party, usually when you are not successful in legal action against them or they are successful in legal action against you. Such payments would be in addition to our charges and expenses incurred.

11.7. You should immediately check whether you have insurance policies which provide cover for some or all of your legal costs concerning this matter. If you do, then you should immediately notify the insurer(s) about this matter. If you delay in informing them they may refuse to accept the claim.
 

12. Files

12.1. In addition to any other rights at law, we reserve the right to keep your files (i.e. documents, correspondence, records, etc.) whether the documents, correspondence, records etc. were generated by us or received from you or other persons, if any sums owing by you to us have not been paid at the end of our work on the matter or after the termination of the retainer.

12.2. It is Bransens’ policy that:

12.2.1. subject to any Cayman law to the contrary, any documents or information pertaining to such matter will be scanned and digitally stored in a suitable information storage or retrieval system and thereafter shredded and discarded.

12.2.2. Our data centres may be physically located in another jurisdiction.

12.2.3. The foregoing sub-paragraph 12.2.1 is subject to the exception that we will not destroy (a) original certificates or (b) documents which you have expressly asked us and which we have expressly agreed to retain in paper form.

12.3. We do not usually charge for retrieving papers or documents held in storage where you are providing continuing or new instructions. We may charge (based on the time spent) for producing archived papers (whether stored digitally or otherwise) to you or to another person at your request.

12.4. We retain all copyright and other intellectual property rights in the documents or information developed by us.
 

13. Conflicts of Interest

13.1. Should a conflict of interest develop during the course of our representation, we will, upon discovery promptly notify you of same to the extent that disclosure is possible without violating any attorney-client privilege.

13.2. In this engagement we will only represent the person named as client. In the case of a legal entity, our client is only that legal entity, not any individuals or entities that may be affiliated with that legal entity or any attorneys, agents, representatives, officers, directors, members, shareholders, employees or affiliates of the client.

13.3. As a general rule, the Firm does not regard an affiliate of a legal entity client (i.e., parent, subsidiary or other entity under common control) as a client of the Firm, unless there is an express written agreement creating an attorney/client relationship between the Firm and that affiliate. Likewise, the Firm does not regard its representation of another client in a matter that is adverse to an affiliate of a legal entity client as being adverse to that legal entity client. If there is an entity that is a corporate family member of the client that you wish the Firm to regard as a client for conflict purposes, please advise us in writing. Upon receipt, we will run an additional conflict check on any entity you list and promptly advise you if a conflict waiver is required as a result.

13.4. The Firm represents, and in the future will represent, many other clients, some of whom may be your direct competitors or may have business interests that are adverse to yours. It is possible that, during the time we are representing you, an existing or future client may seek to engage us in connection with a transaction or a litigation matter or other dispute resolution proceeding in which such client’s interests are, or potentially may become, adverse to your interests. Therefore, subject to the conditions in these Terms, you hereby waive all conflicts of interest that may develop in the future as a result of legal work by us that is unrelated to the work the Firm performs for you (“Permitted Representation”). Nothing contained herein shall constitute a waiver that would allow us to:

• attack work the Firm performs for you; or

• disclose or use adversely to your interests or place us in a position to disclose or use adversely to you any of your confidential and nonpublic information.

13.5. You agree that you will not assert any matter in which we represent you, whether past present or future as a basis to preclude or otherwise disqualify the Firm from any Permitted Representation. You further acknowledge and agree that:

13.5.1. the Firm has advised you to consult with other counsel about the terms and conditions of this advance conflicts waiver and you have had the opportunity to do so;

13.5.2. your agreement and consent to the provisions of this advance conflicts waiver is both voluntary and fully informed;

13.5.3. you understands that this consent will be relied upon by the Firm; and

13.5.4. although you may revoke this advance conflicts waiver at any time as it relates to future matters, a revocation will not affect any matters undertaken by the Firm before it has received notice of revocation.
 

14. Tax Advice

Any tax advice we provide is strictly limited to the Cayman Islands. You agree that you are solely responsible for consulting with appropriately qualified tax advisors in any jurisdiction other than the Cayman Islands where there may be tax liabilities or a tax impact.
 

15. Trigger Dates

Following completion of this engagement, the Firm has no obligation to inform you of any trigger date, being a date by which you are required to do or refrain from doing an act to protect an interest or legal right.
 

16. Notices

Any notice required to be given under these Terms shall be in writing and shall be given by email or served by being posted by prepaid mail or delivered by commercial courier service to the last known address of the relevant party.
 

17. Termination

17.1. You can terminate your instructions to us in writing at any time. But if you have not paid all the sums owing to us, we are entitled to keep your files and documents until you do so.

17.2. We will only stop acting for you when we have a good reason to do so; for example:

17.2.1. if you do not pay one or more of our invoices promptly;

17.2.2. you breach any of the provisions of these Terms;

17.2.3. if you do not make an advance payment or ‘top up’ payment promptly once we require you to do so;

17.2.4. where the cost limit if any has been reached and is not extended;

17.2.5. if you fail to provide us with the instructions or documentation we need to represent you properly or where you fail to provide us with the due diligence documentation or information we have requested;

17.2.6. if you provide instructions which are unreasonable or would require us to breach a professional rule or a duty to the court or involve the commission of a criminal offence;

17.2.7. where a conflict of interest arises;

17.2.8. where we consider that there has been a breakdown in trust and confidence.

17.3. If we decide to stop acting for you we will give you reasonable notice that we are to stop acting. The precise length of the notice will depend on the circumstances.

17.4. If you decide that you no longer wish us to act for you, you will pay us for the time we spend based on hourly charges plus any expenses incurred up to the date of our ceasing to act for you.

17.5. If we cease to act for you (for whatever reason) you agree to send to the court and every other party involved in this matter a notice. The notice will state that we are no longer acting for you and, if appropriate, indicate who your new attorneys are. You agree to do this within 10 days of us ceasing to act for you (or two working days prior to a court hearing). Your new attorneys may do this for you. However, if you do not do this (or your new attorneys do not do this) then you hereby authorise us to send to the court and the other parties a notice indicating that we have ceased acting for you. If we send the notice then you agree that the notice will indicate your address for correspondence as your official address for service of documents relating to the case and will show you as acting in person.
 

18. Agreement

18.1. Your continuing instructions will amount to your acceptance of these Terms, and the appointment of Bransens as your advisors in respect of the matter for which we are retained by you.

18.2. If you provide us with further instructions, these Terms will apply, unless we agree otherwise.
 

19. Law and Jurisdiction

This agreement shall be governed by and construed in accordance with the laws of the Cayman Islands and each party agrees to submit to the exclusive jurisdiction of the courts of the Cayman Islands.