The foundation stones for a balanced success are honesty,
character, integrity, faith, love and loyalty.
~ Zig Ziglar
~ Zig Ziglar
If unsigned by the Client, these Terms and Conditions will be deemed to have been agreed by the Client by the acceptance of any of the Services.
While the provisions of this agreement have been drafted in accordance with Seychelles law and practice as at the date stated below, the parties acknowledge that the laws and practices of Seychelles are subject to change, and that amendment to this agreement made with the mutual consent of the parties may be required in order to maintain compliance.
ACT may revise these Terms and Conditions and the Schedule of Fees from time to time. The Client shall be bound by any revision of these Terms and Conditions and/or the Schedule of fees:
1 Definitions and Interpretation
1.1 In these Terms and Conditions, the following words and phrases shall, save where the context requires otherwise, have the following meanings:
ACT means A.C.T. – OFFSHORE LIMITED together with its respective subsidiaries, affiliates and any successors in title wheresoever situated.
Agreement means any agreement in writing entered into between ACT and the Client and/or the Maintained Entity relating to the Services.
Appointees means all persons including any Professional Officer introduced by ACT to act as a director or other officer, trustee, manager, signatory or shareholder of any Maintained Entity.
Beneficial Owner means a person who either exercises effective control over a legal person or who is deemed by any law to do so if that person controls 25 percent or more of the capital, profits or property of the legal entity.
Business Day means a day on which ACT is ordinarily open to carry on business, which is ordinarily any day other than Saturday or Sunday, on which ordinary banks are open for their full range of normal business in Seychelles.
Client means any person to whom ACT provides the Services and, in the case of an individual, includes his heirs, personal representatives and assigns and, in the case of a body corporate, includes its successors and assigns.
Commencement Date means the earlier of the terms being signed and acceptance of any Services by the Client.
Employees means the directors, officers, consultants, and employees of ACT.
Maintained Entity means any body corporate, partnership, trust, association or other person in respect of which Services are provided.
Professional Officer means any individual who enters into an agreement with ACT to provide directorship and nominee services to the Client and/or a Maintained Entity.
Party or Parties means ACT and/or the Client
Schedule of Fees means the schedule of fees issued from time to time by ACT in respect of the fees for the Services.
Services means all services carried out or performed for or on behalf of, or in connection with (whether before or after its establishment), any Maintained Entity by ACT or any Appointee or Employee (including, without limitation, the provision of trustees, directors and shareholders and the administration of such Maintained Entity).
Terms and Conditions means these terms and conditions as amended from time to time.
1.2 In these Terms and Conditions unless the context otherwise requires, words importing the singular shall include the plural and the masculine gender shall include the feminine and the neuter and vice versa in each case.
1.3 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time.
1.4 References to “Clauses” herein are to clauses of these Terms and Conditions.
2 Provision of the Services
2.1 ACT will, on written request, and subject to its policies and the laws of Seychelles, provide Services to the Client. ACT undertakes to notify the Client of any legislative changes or regulatory changes.
2.2 ACT shall act in accordance with all reasonable instructions given to it by the Client provided such instructions are compatible with the specification of Services provided in these Terms and Conditions.
2.3 ACT reserves the right to decline to accept or process any application for Services. A completed application form or any instructions submitted to ACT does not constitute a contract unless accepted by ACT in writing.
3 Fees and Payments and Records
3.1 ACT shall be entitled to:
(a) fees in accordance with the Schedule of Fees or as otherwise expressly agreed; and
(b) be reimbursed for all disbursements and expenses incurred by it in providing the Services. A sundry disbursement charge may be included in each invoice to cover general disbursements which it is not practical to charge on a provision basis.
3.2 ACT shall invoice the Client for fees due in accordance with the Schedule of fees or as otherwise agreed. ACT reserves the right to charge additional fees for Services not included in the Schedule of Fees.
3.3 ACT may deduct any unpaid monies owing to it in connection with the Services from the assets of the Maintained Entity without the consent of the Client.
3.4 Where ACT and any Maintained Entity enter into an Agreement relating to the Services which does not expressly replace these Terms and Conditions in their entirety:
(a) in the event of any conflict between the terms of the Agreement and these Terms and Conditions, the terms of the Agreement shall prevail;
(b) the Client hereby guarantees the due payment of all fees, disbursements and expenses payable by the Maintained Entity under the Agreement (and agrees that ACT may claim under this guarantee without first seeking recourse against the Maintained Entity or any other person);
(c) the Client shall ensure that the Maintained Entity is kept in funds sufficient to allow it to meet in full all fees, disbursements and expenses payable by the Maintained Entity under the Agreement.
3.5 Any discounts or fee reductions offered to the Client or Maintained Entity apply to fees only and not to taxes and disbursements. Disbursements and out-of-pocket expenses will be charged in addition to the fees stated in the Schedule of Fees.
3.6 All monies payable to ACT in connection with the Services shall be paid within thirty (30) days of the issue of the relevant invoice and interest at the rate of 0.5% per month may, at the discretion of ACT, be charged on all overdue amounts.
3.7 Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be made on the next Business Day.
3.8 All fees, disbursements and expenses paid in advance are non-refundable.
3.9 Each Party shall keep, or procure that there are kept, such records and books of account as are necessary to enable any amount of any sums payable pursuant to the Agreement to be accurately calculated.
4 Client’s Undertakings
4.1 The Client hereby undertakes that:
(a) all assets which are or will be introduced to the Maintained Entity have been lawfully introduced and are not derived from or otherwise connected with any illegal activity;
(b) the Maintained Entity will not be engaged or involved directly or indirectly with any unlawful activity or used for any unlawful purposes;
(c) the Maintained Entity will not undertake any activities which will require a licence, consent or approval in any jurisdiction without first obtaining such licence, consent or approval or which will breach any conditions contained in any such licence, consent or approval;
(d) it has taken appropriate tax and other advice with regard to the establishment, conduct and use of any Maintained Entity;
(e) it shall procure that the Maintained Entity complies with all filing requirements in any applicable jurisdiction and that all taxes and governmental dues payable by the Maintained Entity are discharged;
(f) it shall procure that the Maintained Entity complies with all applicable anti-money laundering, combating terrorist financing and anti-bribery legislation in any applicable jurisdiction and does not breach any sanctions which have been issued or implemented by any relevant authority;
(g) it shall provide such information as ACT in its discretion requires in order to comply with all applicable laws and regulations (including ‘know your customer’ requirements) and to provide the Services;
(h) immediately upon becoming aware thereof, it shall notify ACT of:
(i) any event which could reasonably be foreseen to have a material effect on the Maintained Entity or its assets or activities (including, without limitation, any act evidencing the insolvency of the Client or the Maintained Entity or commencing any liquidation, winding up or dissolution) or upon ACT’s willingness to continue to provide the Services;
(ii) any actual or threatened litigation in any jurisdiction or any actual or threatened investigation by any judicial or regulatory authority and any progress thereof, and it shall promptly provide such information as ACT may, in its discretion, require in respect thereof;
(i) where the Services include the provision of Appointees, it shall not, without the prior consent of ACT, take any action, enter into any agreement or contract, give any undertaking, make any representation or otherwise incur any liability on behalf of the Maintained Entity;
(j) it shall notify ACT before alienating, assigning, selling, pledging or otherwise disposing of or encumbering any part of the Client’s interest in the Maintained Entity.
(k) it shall notify ACT in writing of any change in:
(i) the management, ownership or control of the Maintained Entity;
(ii) the address where the accounting records of the Maintained Entity is being kept;
(iii) the management or primary contact of the Client;
(iv) the Client’s postal, physical location and electronic address
(l) it shall annually furnish a return in the form of a declaration for each Maintained Entity stating:
(i) the Maintained Entity is keeping accounting records in accordance with the relevant laws of Seychelles and that such records can be made available to ACT; and
(ii) the registers located at the Registered Office is complete and up to date.
4.2 The Client represents and undertakes that it has taken appropriate tax and other advice with regard to the establishment of the Maintained Entity and its proposed activities and for ensuring that the Maintained Entity complies with all applicable laws and regulations in all relevant jurisdictions. ACT is not responsible for advising the Client on such matters.
4.3 The Client will procure that that no false or misleading information (including advertisements) is circulated by a Maintained Entity to its clients, to the public or ACT.
4.4 The Client represents that in providing the Client with any Maintained Entity, ACT does not in any way sanction or condone the commission of any unlawful act or omission by any person or Maintained Entity in any jurisdiction, or the use of any Maintained Entity for any illegal, fraudulent or otherwise prohibited purposes, including, without limitation, any activities relating to drug trafficking, terrorism, money laundering, pornography, arms or weapons trafficking or tax evasion. If ACT becomes aware that the Client or any Maintained Entity becomes involved in any of the above activities, ACT may at its discretion take any action as authorized under clause 5.6, 6.1, 6.2 and 18.
5.1 All instructions from the Client to ACT shall be in writing or if received telephonically, shall be confirmed in writing.
5.2 ACT may act upon instructions (whether by letter, fax, email, telephone or otherwise) given by any person that it reasonably believes to be authorised to give such instructions on behalf of the Client and ACT is not obliged to verify the identity of any person purporting to be so authorised.
5.3 If applicable, the Client shall inform ACT in writing of the persons authorized to instruct ACT on its behalf and shall keep this information up to date with revisions from time to time as necessary.
5.4 Where ACT does not believe that the person giving instructions is duly authorised or where ACT is given instructions that it believes are unclear or contradictory, it may refuse to act upon such instructions until it receives evidence to its satisfaction as to the instructions or the person giving instructions and none of ACT, the Appointees or the Employees shall incur any liability for such refusal to act.
5.5 None of ACT, the Appointees or the Employees shall incur any liability:
(a) for its failure to comply with any instructions which are not in writing or confirmed in writing, or which are incomplete, ambiguous or contain errors;
(b) for the non-receipt of any instruction, written or otherwise; or
(c) for the lack of authority of any person purportedly giving instructions on behalf of the Client.
5.6 If ACT is unable to obtain instructions from the Client on matters affecting the Maintained Entity and/or Client within 3 months of making a request for instructions, ACT may proceed in any ore more of the following ways:
(a) take no further action on a particular matter;
(b) take no further action at all in relation to the Maintained Entity and/or Client;
(c) have the Maintained Entity terminated or dissolved;
(d) effect a resignation of all or any of the Appointees;
(e) transfer any or all of the shares or interest in the Maintained Entity into the name of the Client;
(f) transfer any of all of the shares or interest in the Maintained Entity into the name of the Beneficial Owner.
6 Specific Authority
(a) any demand is made against the Maintained Entity for payment of any sum due including, without limitation, any taxes, duties, fees, penalties or other governmental or state impositions and such payment has not yet been made;
(b) ACT has not been able to obtain instructions from the Client or any authorised person in circumstances where, in ACT’s opinion, instructions are required in order to take action that it considers necessary; or
(c) ACT has received instructions from the Client or any authorised person which, in ACT’s opinion, are or may be illegal or contrary to the interests of the Client and/or the Maintained Entity or which may lead to any of ACT, the Appointees or the Employees incurring liability (including, without limitation, personal liability),
then ACT may, as it deems necessary, either take such action on behalf of the Maintained Entity as it thinks fit (including, without limitation, seeking professional advice at the cost of the Maintained Entity, appropriating the assets of the Maintained Entity to satisfy any demands for payment, winding up the Maintained Entity or transferring the assets of the Maintained Entity to the Client or the Beneficial Owners) or take no action whatsoever.
6.2 ACT reserves the right to resign as Registered Agent, Secretary or Trustee of any Maintained Entity for any reason and/or to refrain from providing Services which it deems in its sole discretion may violate any relevant laws.
6.3 ACT will, as soon as is reasonably practicable after taking any action under Clause 6.1 and 6.2, give notice to the Client of such action having been taken.
6.4 None of ACT, the Appointees or the Employees shall incur any liability for any action or inaction of ACT pursuant to this Clause.
In the event of non-payment of all or any part of any fees, disbursements or expenses due to ACT or which ACT is liable to pay on behalf of the Maintained Entity or in respect of which the Maintained Entity becomes liable to ACT in any other manner, then ACT shall have a lien over, or the right not to release from the possession or control of ACT, all or any documents or assets, including assets held on behalf of the Maintained Entity or to the order of the Maintained Entity or on behalf of or to the order of any company or other body in common ownership with the Maintained Entity or otherwise connected or affiliated to the Maintained Entity in any manner, until such time as all such fees, disbursements, expenses, or liabilities due and payable are discharged.
For the avoidance of doubt, this lien shall apply to all documents and assets held in relation to the matter in respect of which the fees, disbursements, expenses or liabilities have been incurred and in relation to any other matter whatsoever relating to the Maintained Entity.
Further, if ACT should cease to act for or in relation to the Maintained Entity, a final invoice may be submitted and ACT reserves all rights to exercise the right of the lien aforesaid over all documents and assets held on behalf of the Maintained Entity or in relation to the Maintained Entity until such time as the final invoice is discharged in full.
8 Conflicts of Interest
8.1 ACT provide a wide range of services to a number of clients and it is possible that a conflict of interest may arise as a result. If ACT becomes aware or is notified of a possible conflict of interest, the Client shall be notified and, if possible, procedures will be put in place to ensure confidentiality and independence of advice.
8.2 ACT shall be entitled to retain any benefit, whether direct or indirect and including any fees or commissions, obtained:
(a) on any purchase or sale of investments;
(b) by reason of ACT, the Appointees or the Employees acting (including, without limitation, as manager, administrator, trustee, director, officer, shareholder or adviser) for or in connection with any company, partnership, investment fund, scheme or other entity the shares, interests, notes or units of which are comprised in the assets of a Maintained Entity;
(c) under any banking, investment advisory or other arrangement entered into on behalf of the Maintained Entity; or
(d) in respect of the provision of any other services to or in connection with the Maintained Entity.
9 Identity Information and Verification
As part of ACT client acceptance procedures ACT will be required by anti-money laundering regulations to obtain information and documentation to identify and verify the identity of the Client and certain persons connected to them unless an exemption is available. The Client agrees that if such information and documentation is not made available to ACT when required by and in a form acceptable to ACT, ACT may without liability terminate the engagement with the Client with immediate effect. The time at which such information and documentation is required and the form in which it shall be delivered to ACT shall be determined by ACT in its absolute discretion.
10 Confidentiality and Disclosure
10.1 The Client acknowledges that, in certain circumstances, ACT, the Appointees or the Employees may be obliged to give information and/or evidence to courts, authorities, regulators or tax authorities in connection with the affairs of the Maintained Entity, the Client and certain persons connected to them. Subject to Clause 10.2, disclosure of such information will not be made to third parties unless required by law or regulation or where the failure to make such disclosure would, in the opinion of ACT, be prejudicial to ACT, the Appointees or the Employees.
10.2 ACT, the Appointees and the Employees may also disclose information relating to the Client and the Maintained Entity (including, without limitation, for ‘know your customer’ requirements):
(a) to any other entity where such disclosure is necessary for the proper performance of the Services; and/or;
(b) to any of its subcontractors and/or data processors (subject always to appropriate confidentiality undertakings being obtained from such subcontractors and/or data processors).
10.3 The provisions of this Clause shall remain in full force and effect notwithstanding these Terms and Conditions ceasing to apply.
11 Intellectual Property
All correspondence files and records (other than statutory corporate records) and all information and data held by ACT on any computer system is the sole property of ACT for its sole use and neither the Client nor the Maintained Entity thereof shall have any right of access thereto or control there over.
12 Data Protection
12.1 ACT is bound by the requirements of the Data Protection Act.
12.2 ACT shall ensure that any personal data gathered under the terms of the engagement will be processed in accordance with the requirements of current data protection legislation and only for the purposes of providing the Services (and any purpose ancillary thereto).
12.3 ACT may use personal data for purposes ancillary to providing the Services, including but not limited to the following:
(a) undertaking internal conflict of interest checks, analysing ACT’s performance and generating internal financial and marketing reports;
(b) assessing legal and financial risks and collecting debts; and
(c) marketing ACT’s services to the Client in the future, which may involve contacting the Client or, where applicable, individuals within the Client’s organisation using the contact details provided to us.
12.4 Depending on the nature of the Services, ACT may act either as a data controller or data processor.
13 Safe Custody
ACT will keep all such deeds and documents which it considers appropriate, or where it is requested by the Maintained Entity to do so, in its safe custody facilities. These facilities are carefully regulated and controlled and designed to limit the possibility of unauthorised access or damage by fire. ACT does not accept items of value such as jewellery and bearer certificates into its safe custody facilities. ACT accepts no responsibility for any deeds or documents held in safe custody that are damaged or lost as a result of theft, fire or water damage, in the absence of gross negligence.
14 Client / Maintained Entity Money
14.1 Money belonging to the Client or the Maintained Entity will be maintained at all times separate from the funds of ACT.
14.2 To the extent that tax has to be deducted from interest earned on funds held on behalf of or paid out to the Maintained Entity, the Client and certain persons connected to them the the Maintained Entity and/or the Client will account to the tax authorities for tax deducted. The Maintained Entity and/or the Client is responsible for seeking its own tax advice in this regard.
14.3 On receipt of any monies ACT must be satisfied as to the source of these funds. If it has any doubts as to the source of funds ACT may be bound by law to notify the relevant authorities.
14.4 The Maintained Entity and/or the Client will not request ACT to take or refrain from taking any action whatsoever in relation to funds or assets or documents of any nature which could in the sole opinion of ACT result in a contravention of any law or regulation in force from time to time in Seychelles or in any other place whatsoever. ACT reserves the right not to comply with any request which in its sole opinion could potentially result in any such contravention or which in its opinion could result in any damage to its reputation or good standing.
15 Transfers and Transmissions
All transfers and transmissions of monies, assets or documents are made at the risk of the Maintained Entity and the Client. ACT shall not be liable for any loss, damage or delays howsoever caused which is not directly caused by its gross negligence.
Any complaints received in respect of the provision of the Services shall be dealt with in accordance with ACT’s current complaints procedure, as amended from time to time.
17 Exculpation and Indemnity
17.1 None of ACT, the Appointees or the Employees shall be held liable for any failure or delay in the performance of its obligations in connection with the Services arising out of or in connection with circumstances beyond its reasonable control (including, without limitation, acts of God, civil or military disturbances, outbreaks of war, acts of terrorism, natural disaster, act of government or any other authority, accidents, labour disputes or any power, telecommunications or computer failure).
17.2 The Client undertakes at all times to hold ACT, the Appointees or the Employees harmless and to indemnify them to the greatest extent permitted by law against all actions, suits, proceedings, claims, demands, costs, expenses and liabilities whatsoever which may arise from the provision of the Services by ACT, the Appointees or the Employees, other than liabilities arising from the fraud, wilful default or gross negligence of ACT, the Appointees or the Employees.
17.3 The provisions of this Clause are without prejudice to any other limitation of liability or indemnity given in favour of ACT, the Appointees or the Employees and shall remain in full force and effect notwithstanding termination of these Terms and Conditions.
18.1 These Terms and Conditions may be terminated by either party giving thirty (30) days’ notice to the other in writing including email or fax, but any such termination will expressly not affect the requirement to pay any outstanding invoices due by either party to the other party. ACT may charge for all fees, disbursements or expenses incurred in connection with termination of the Services and resignation from any office in any Maintained Entity.
18.2 All and any obligation to provide the Services shall cease immediately upon ACT giving notice in writing to the Client that:
(a) the Client has breached any of these Terms and Conditions;
(b) any Agreement has terminated for any reason whatsoever;
(c) in ACT’s opinion, the Client cannot meet its payment obligations hereunder or under any Agreement; or
(d) ACT has become aware that the Client and/or the Maintained Entity is or may become subject in any part of the world to investigation by any judicial or regulatory authority or that criminal proceedings are instituted or threatened against the Client or the Maintained Entity.
18.3 Where ACT and the Client subsequently enter into an Agreement which expressly replaces these Terms and Conditions in their entirety, these Terms and Conditions shall cease to apply without prejudice to any accrued right or obligation of the parties.
18.4 Upon termination pursuant to this Clause, each of ACT, the Appointees and the Employees shall be entitled to make such retentions and receive such indemnities as it or they may require in respect of any actual or contingent liability and may take such action as it or they deem necessary to limit such liability.
19 Joint and Several Liability
Where the Client is more than one person,
(a) each such person hereby appoints the other such person(s) to act as his agent to exercise full power and authority in connection with the Services on his behalf; and
(b) all obligations of the Client in connection with the Services shall be joint and several.
A parent or legally appointed guardian shall be the main contact person for Maintained Entities owned by a minor until the minor attains the age of 18. The parent or legally appointed guardian shall promptly inform ACT on the minor reaching the age of 18, after which the minor will be entitled to become the main contact person.
21.1 ACT may assign or transfer the whole or any part of its rights, benefits and/or obligations under these Terms and Conditions. For the purpose of any such assignment or transfer, ACT may disclose information about the Client and the Maintained Entity to any prospective assignee or transferee, provided that ACT shall use its reasonable endeavours to procure that such prospective assignee or transferee is placed under an obligation of non-disclosure equivalent to that in Clause 10.
21.2 The Client shall not assign or transfer all or any part of its rights, benefits and/or obligations under these Terms and Conditions.
If at any time one or more of the provisions of these Terms and Conditions becomes invalid, illegal or unenforceable in any respect, that provision shall be severed from the remainder and the validity, legality and enforceability of the remaining provisions of these Terms and Conditions shall not be affected or impaired in any way.
23 Taxes And Penalties
Unless otherwise agreed in writing between the Client and ACT, the Client shall be responsible for the payment of its own costs and expenses (whether incurred directly by the Maintained Entity or incurred by ACT) including all taxes, penalties, corporate, registration and licence fees payable by the Maintained Entity to any legal, governmental or regulatory authorities in any applicable jurisdiction.
24.1 Any notice required to be given hereunder shall be in writing addressed to the party concerned at its address from time to time notified to the other for the purpose, failing which the registered office or the last known usual address of such party.
24.2 Notices shall be deemed to have been duly given:
(a) when delivered, if delivered personally or by courier or other messenger (including registered mail) during normal business hours of the recipient; or
(b) when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
(c) on the seventh (7th) business day following mailing, if mailed by national ordinary mail, or
(d) on the fourteenth (14th) business day following mailing, if mailed by airmail.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
24.3 Any communication in relation the provision of the Services, including the sending of annual renewal notices, shall be deemed to have been properly communicated to the Client and the Maintained Entity if sent to the last postal address, email address or fax number provided by the Client.
25 Relationship of the Parties
Nothing in these terms and Conditions shall constitute or be deemed to constitute a partnership or joint venture.
26.1 Neither Party shall, for the duration of these Terms and Conditions and for 2 years after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the other Party at any time in relation to the Terms and Conditions without the express written consent of the that Party.
26.2 Neither Party shall for the duration of these Terms and Conditions and for 2 years after its termination or expiry, solicit or entice away from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.
27 No Waiver
No failure or delay by either Party in exercising any of its rights under these Terms and Conditions shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of these Terms and Conditions shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
28 Further Assurance
Each Party shall execute and so all such further deeds, documents and things as may be necessary to carry the provisions of these Terms and Conditions into full force and effect.
29 Dispute resolution
29.1 The Parties shall attempt to resolve any dispute arising out of or relating to these Terms and Conditions through negotiations between their appointed representatives who have the authority to settle such disputes.
29.2 If negotiations under 29.1 do not resolve the matter within 30 days of receipt of a written invitation to negotiate, the dispute may be referred to Arbitration by either Party.
29.3 Nothing in Clause 29 of these terms and Conditions shall prohibit either Party or its affiliates from applying to a court for interim injunction relief.
30 Governing Law and Jurisdiction
These Terms and Conditions (including any non-contractual matters and obligations arising therefrom or associated therewith) and all documents, agreements and application forms into which these Terms and Conditions are incorporated shall be governed by and construed in accordance with the laws of The Republic of Seychelles and the Client hereby agrees to submit to the exclusive jurisdiction of the Seychelles courts in connection herewith (save where a document, agreement or application form provides otherwise).
7th July 2015