Legal

Important Note
These General Terms and Conditions of Business set out important information regarding our engagement as a service provider to you (as defined below). You should read these general terms of business carefully and retain them for future reference. These General Terms and Conditions of Business in conjunction with the Engagement Letter represent the terms of the contract between you, and us (Delphos International, Ltd.) (the “Agreement”)

1. Definitions and interpretation
1.1. In these General Terms of Business generally, the following words and expressions shall, unless the context otherwise requires, have the following meanings:

Agreement
means the agreement between you and us which is constituted of these General Terms and Conditions of Business and the Engagement Letter (including its Schedules);

Authorised Person
means an agent of the Client, a person authorised by the Client to give instructions, recommendations or requests to us in relation to the Services, or where the context requires or permits, a person authorised by you to give instructions, recommendations or requests to us in respect of the Services;

Delphos International, Ltd. or Service Provider
means Delphos International, Ltd. (a C Corporation domiciled in Delaware), its successors, assigns and transferees and references in these general terms of business to “we”, “us” and “our” shall be construed as references to Delphos International, Ltd. or where the context requires or permits, to any Group Company;

Client
means the person who hereby instructs us to provide the Services, and references in these general terms of business to “you”, “your” and “yours” shall be construed as references to the Client;

Company
means the company or companies to or in respect of whom we provide the Services;

Data Protection Law
means the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act), the New York General Business Law (specifically section 39F relating to the acquisition of private information by persons without valid authorization), the EU General Data Protection Regulation 2016/679 (“GDPR”), the UK Data Protection Act 2018 (the “DPA”) and all other applicable legislation in force in the US, UK and any other applicable jurisdiction from time to time relating to the processing of personal data and data privacy, together with any regulations or orders made thereunder from time to time, in each case as may be amended, superseded or replaced from time to time;

Direct Marketing
means the communication (by whatever means) of advertising or marketing material which is directed to particular individuals;

Fees
means the fees set out in Schedule 1 of the Engagement Letter;

Group Company
means Delphos International, Ltd., its holding company, subsidiaries, its parent and any subsidiaries of its parent;

Indemnified Person
means Delphos International, Ltd., its Group Companies and each of their employees, agents, officers and servants from time to time (including former employees, agents, officers and servants);

Applicable Law
includes all primary and secondary legislation, all regulations, rules, orders, guidance notes issued by any applicable regulator or authority, all anti-money laundering, counter financing of terrorism or anti bribery laws, regulations and guidance and any direction or other regulatory decision made by any applicable regulator or authority, in each case applicable to the Services, Delphos International, Ltd., the Client or the Company;

Person Associated
in respect of a company, means a subsidiary, holding company or subsidiary of the same holding company of that company; in respect of a trust, means a settlor, trustee, beneficiary or any relative of such persons; in respect of an individual, means any relative, business associate, company in which the individual or any relative has an interest whether as an officer or owner;

Professional Fees
means professional fees including, without limitation, any legal, accounting or other fees incurred by the Service Provider, or any Group Company in any jurisdiction incurred in conjunction with the provision of the Services;

Services
means the services we provide as part of our business and which you have hereby engaged us to provide for you under the terms of the Engagement Letter and these General Terms and Conditions of Business;

VAT
means value added tax, sales tax or any applicable similar or analogous tax.

1.2. A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3. Unless the context otherwise requires, words in the singular shall include the plural, and in the plural, shall include the singular. Where more than one person has an obligation or liability under this Agreement, their obligation or liability shall be joint and several.

1.4. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.5. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.6. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time.

1.7. Headings shall not affect the construction of a clause in this Agreement.

2. Services

2.1. At your request, we agree to provide the Services to, and in respect of, you.

2.2. The provision of the Services is governed by the terms of this Agreement, Applicable Law and our internal procedures including, if relevant and without limitation, anti-money laundering procedures (as amended from time to time).

2.3. The extent of the Services may be varied from time to time. Where you request us to provide additional Services, we will (where practicable) provide an updated Schedule 1 to the Engagement Letter to you.

2.4. We reserve the right to suspend or refuse to provide any Services where:

2.4.1. you have failed to provide any documentation or information requested by us; or

2.4.2. any requirements of our internal procedures or compliance controls are not satisfied to our reasonable satisfaction; or

2.4.3. you are in breach of this Agreement.

3. Instructions and Communication

3.1. Where you are lawfully permitted to give us instructions, we will act on those instructions subject to our overriding legal duties under Applicable Law.

3.2. We are hereby authorised, but are not obliged, to rely upon or to act in accordance with any instruction which may from time to time be or purport to be given in person, in writing, by fax, telephone or electronic mail or other electronic means by you or any Authorised Person without enquiry on our part as to the authority or identity of the person giving or purporting to give such instruction.

3.3. You agree that we may communicate with you or any Authorised Person by post, courier, delivery service, fax, email (including unencrypted email), other electronic means, video conference or telephone (including VoIP, Skype or similar). We shall have no liability for any loss, damage or liability incurred by you by reason of the use of email (whether arising from viruses or otherwise) and you hereby release us from any such liability.

3.4. You hereby agree to indemnify us against all losses, claims, actions, proceedings, demands, damages, costs and expenses incurred or sustained by us, howsoever arising, in connection with, or in relation to, any such instructions or requests given by, or purported to be given by you or any Authorised Person.

3.5. We shall not be liable to you or any other person for any loss, damage or expense incurred directly or indirectly as a result of a delay by us in acting on your or any Authorised Person’s instructions, requests or recommendations unless such delay was caused by our wilful default or fraud. For the avoidance of any doubt, a delay in acting on any instructions, requests or recommendations pursuant to clause 2.4 above shall not amount to wilful default.

3.6. We shall not be liable to you or any other person for any loss, damage or expense incurred directly or indirectly as a result of us acting on your or any Authorised Person’s instructions, requests or recommendations unless such loss was caused by our wilful default or fraud.

3.7. Any notice in writing required to be given under this Agreement may be given by email, post, courier or hand delivery to the last notified address (or in the case of a company, the registered office) of the party being served and shall be deemed duly served:

3.7.1. if hand delivered, upon delivery;

3.7.2. if by email, close of business in the jurisdiction of the recipient on the day it was sent;

3.7.3. if by courier, upon delivery provided proof of delivery is obtained;

3.7.4. if by post within the British Isles, 2 business days after being posted; or

3.7.5. if by post outside the British Isles, 7 business days after being posted.

3.8. Clause 3.7 does not apply to the service of any proceedings or other documents in any legal action.

4. Fees and Charges

4.1. We will charge Fees for the provision of Services and you agree that we are entitled to charge Fees.

4.2. You covenant and agree to be jointly and severally responsible for payment of (a) our Fees, together with applicable VAT and all disbursements (Fees, VAT and disbursements are together referred to as “Fees & Disbursements”) which we incur in relation to the Services and (b) any other sums which we are entitled to charge under the terms of the Engagement Letter. You agree that you are liable for all such amounts as a principal debtor and that you have received consideration for, or in respect of, such amounts. You agree to be responsible for all such amounts whether or not you return the Engagement Letter duly signed by, or on behalf of, you.

4.3. We may from time to time request you to provide a deposit on account towards Fees & Disbursements.

4.4 We reserve the right to exercise a lien over any documents, files or assets belonging to you which may be in our possession, in respect of any and all outstanding Fees.

4.5 We will charge for any work carried out even if the transaction or matter does not proceed to completion or as envisaged.

4.6 In the event that any invoice is outstanding, we reserve the right to charge interest on all overdue amounts at a rate of 2% per month from the date the invoice is due until paid.

5. Information

5.1. You represent and warrant that the information that you have provided to us, or will provide to us, is accurate and complete and is not misleading in any way. You hereby confirm that you are acting solely as principal and not as agent for any other person.

5.2. You must also inform us immediately in writing of any changes to your details as given either in the course of application for business or at any subsequent date. This obligation relates to information including, but not limited to, any change of name, address or contact details.

6. Rights of Third Parties, Entire Agreement & Variation

6.1. No person other than a party to this Agreement, their successors and permitted transferees or assigns, shall have any right to enforce any of its terms under the Contracts (Rights of Third Parties) Act 2001 unless we expressly agree in writing to such third-party rights.

6.2. This Agreement combined with the Engagement Letter and any confidentiality agreement (if signed before execution of this Agreement) constitutes the entire agreement between the parties in relation to the provision of Services to you.

6.3. We reserve the right to vary, amend or add to any of the terms or provisions of these General Terms and Conditions of Business, and will give at least 30 days’ notice to you of any variation by email or in writing.

7. Anti-Bribery Policy

7.1. The Foreign Corrupt Practices Act of 1977 (FCPA) (specifically, the provisions relating to Corporate Enforcement Policy) prohibits both United States and foreign corporations and nationals from offering or paying, or authorizing the offer or payment, of anything of value to a foreign government official, foreign political party, party official, or candidate for foreign public office, or to an official of a public international organization in order to obtain or retain business. In addition, the FCPA requires publicly held United States companies to make and keep books and records which, in reasonable detail, accurately reflect the disposition of company assets and to devise and maintain a system of internal accounting controls sufficient to reasonably assure that transactions are authorized, recorded accurately, and periodically reviewed.

7.2. The implications of the FCPA for you and any Person Associated with you are that bribes must not be offered (even if they are not accepted), paid (be that in monetary terms or in any other form) or accepted (be that in monetary terms or in any other form). This applies regardless of the location in which the bribe is offered or received. To contravene the requirements of the FCPA is a criminal offence, the penalties for which include imprisonment and the payment of fines.

7.3. It should be noted that the FCPA extends to the prohibition of facilitation payments. These are often small payments made to expedite a process. Such a payment could be an offence under the FCPA.

7.4 It is your responsibility to ensure that you (and your “associated persons” (as defined in the UK Bribery Act 2010), if any) have procedures in place, in accordance with the UK Bribery Act 2010, to prevent any persons who perform services for or on your behalf (or on behalf of any such associated person) from bribing another person (within the meaning given in section 7(3) of the UK Bribery Act 2010) intending to obtain or retain business or an advantage in the conduct of your business in any way connected with the Services.

8. Termination

8.1. This Agreement may be terminated by you or us on giving 180 days written notice (or such shorter notice as the other party may agree to accept) to the other party whereupon this Agreement and the obligations of the parties (save as in respect of antecedent breaches) cease and terminate, subject to the surviving clauses.

8.3. We shall be entitled (but not obliged) to terminate this Agreement with immediate effect by notice in writing in the event that:

8.3.1. you commit any material breach of your obligations under this Agreement or under any other agreement between the parties and have failed to remedy such breach within a reasonable time, if such breach is capable of being remedied; or

8.3.2. you go into liquidation (except for the purpose of a bona fide solvent amalgamation or re-organisation) or is declared bankrupt or a bankruptcy petition is presented against you or a receiver or administrator is appointed in respect of you or anything analogous to any of the foregoing occurs in relation to you under the law of any jurisdiction; or

8.3.3. any legal proceedings are commenced against you (including any injunction or civil, criminal, tax, securities or other investigation or proceedings in any jurisdiction), which directly relates to, or arises out of this Agreement or the Services rendered hereunder;

8.3.4. any invoices raised by us remain unpaid 60 days after their issue.

8.4. Termination shall be without prejudice to any rights or liabilities of any party either arising prior to, or after, termination.

8.5. In the event of termination, any applicable minimum annual charge levied by us will not be pro-rated or refunded.

8.6. Subject to clause 4.6, upon the effective termination of this Agreement, we shall deliver to you or to whom you may direct all records relating to the Services which are the property of your Company and which are in our possession. We shall be entitled to take copies at our sole discretion, at your cost.

9. Indemnity & Limitation on Liability

9.1. We shall not be liable (whether under the express or implied terms of this Agreement, or in negligence, or at common law or in any other way) for any loss, damage or expense howsoever suffered by you, the Company or any other person in connection with, or in relation to, the Services, or any act or omission of any Indemnified Person unless such loss, damage or expense arises from the gross negligence, wilful default or fraud of an Indemnified Person.

9.2. We shall not be liable for any loss, damage or expense howsoever suffered by you or any other person arising directly or indirectly from any act or default of any other person.

9.3. We shall not be liable for any loss, damage or expense howsoever suffered by you or any other person as a result of any event outside our control (for example, but without limitation, an agent or third party failing to act on our or your instructions, interruption or delay in the performance of contractual obligations caused by a global pandemic or epidemy, strike, industrial action, systems failure or terrorism).

9.4. You hereby agree to indemnify each Indemnified Person against all costs, expenses, Professional Fees, damages, claims, losses and liabilities howsoever incurred by any Indemnified Person, whether directly or indirectly, in relation to directly or indirectly:

9.4.1. the Services; or

9.4.2. your non-compliance with this Agreement; or

9.4.3. any civil or criminal enquiry, investigation, prosecution, regulatory action or similar action in any jurisdiction (whether or not proceedings have been commenced) into (a) the Client, (b) any Person Associated with the Client, provided that such indemnity shall not cover any costs, expenses, damages, claims, losses or liabilities incurred solely as a result of our fraud or wilful default.

9.5. For the avoidance of any doubt, we shall be entitled to instruct professionals and incur Professional Fees at our sole discretion.

10. Confidentiality, Records & Conflicts

10.1. The Parties acknowledge that the terms of this Agreement are regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the Applicable Law or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set in this clause. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason.

10.2. You hereby consent to us disclosing any of your information which we hold to a foreign governmental or prosecuting authority where, in our opinion, the interests of Delphos International Limited, any Group Company require disclosure. Unless we are prohibited from doing so by law, if we make such disclosure, we will give you prompt notice in writing after we have made the disclosure. You hereby agree to hold us and each Indemnified Person harmless in respect of any disclosure of information by us in accordance with this Agreement. For the avoidance of any doubt, we shall not be liable to you or any other person for any loss, damage or expense incurred directly or indirectly as a result of such disclosure unless such loss